Bailey and Dennis

[2007] FamCA 193

FAMILY COURT OF AUSTRALIA

BAILEY & DENNIS [2007] FamCA 193

FAMILY LAW - INTERIM CHILD AND PARENTING ORDERS

Family Law Act 1975 (Cth)

APPLICANT: MR BAILEY

RESPONDENT: MS DENNIS

FILE NUMBER: MLC 2122 of 2007

DATE DELIVERED: 8 MARCH 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 8 MARCH 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS DELLIDIS

SOLICITOR FOR THE APPLICANT: HOGG & REID

COUNSEL FOR THE RESPONDENT: MR McKECHNIE

SOLICITOR FOR THE RESPONDENT: JOHN SNODGRASS & ASSOCIATES

Orders

1. THAT pursuant to s.11F of the Family Law Act 1975 the parties confer with a Family Consultant at 2.00 p.m. this day and thereafter attend upon such Consultant as may be requested between now and the adjourned hearing date.

2. THAT, if practicable, the Family Consultant prepare by way of a letter or report to the Court matters of interest or concern or make any other recommendation as is appropriate concerning the parenting concerns and appropriate orders for the child born in December 2000.

3. THAT the further hearing of all extant applications be adjourned to the Judicial Duty List at 10.00 a.m. on 27 March 2007.

4. THAT until the adjourned hearing date the child spend time with the father:

   (a)from after school on Friday 9 March 2007 until the commencement of school on the morning of Tuesday 13 March 2007; and

   (b)from after school on Friday 16 March 2007 until the commencement of school on the morning of Monday 19 March 2007.

5. THAT otherwise the child spend all other time with the mother.

6. THAT during periods of time spent with the father the mother have a right of telephone contact on each Sunday for no more than thirty (30) minutes.

7. THAT during the time that the child spends with his mother the father have a right of telephone contact at 7.00 p.m. on each Tuesday and Thursday for no more than thirty (30) minutes.

8. THAT both parties be and are hereby restrained from:

   (i)removing the child from his current school pending the adjourned hearing date; and

   (ii)removing or permitting the removal of the child from the State of Victoria.

9. THAT leave be granted to the solicitors for both parties to issue Subpoenas to any medical practitioner, hospital or like medical unit or institution and that the return date for all such Subpoenas be in the Subpoenas Clerk List on Tuesday 20 March 2007 at 9.30 a.m.

10. THAT each of the mother and father have leave to make, file and serve one (1) further affidavit of themselves and an affidavit of their current partner all such documents to be filed and served no later than 12.00 noon on Wednesday 21 March 2007.

11. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

12. THAT pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” and these particulars are included in these orders.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the mother and father.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2122 of 2007

MR BAILEY

Applicant

And

MS DENNIS

Respondent

REASONS FOR JUDGMENT

1. In the matter of  the parties there are competing applications before the court for parenting orders on an interim basis for the child born in December 2000 and now six years of age.  The father is the application, represented in court by Ms Dellidis of Counsel.  He has a Form 1 and Form 2 application filed 26 February 2007 supported by his affidavit, which I have read.  The mother's case for orders sought are contained in her Form 1 and Form 2 applications also filed that same day, and in support there is firstly her affidavit of 26 February 2007 and, by leave of the court, a further affidavit which is to be filed and served this day.  I have read a draft of that affidavit, which will not remain on the court file but there is leave for her to file and then appropriately serve her second and responding affidavit.  Mr McKechnie of Counsel represents the mother.

2. There are no prior orders in this case.  The court has the circumstance that the chld is and has over the past fortnight been living with his father because of alleged facts and circumstances that are detailed in the affidavits which necessitated the mother spending time at a hospital and where the father reacted in circumstances that the child was taken by him.  I intend my approach to this case to be wholly neutral.  I am not going to further develop the facts which I have read and the submissions which I have heard from counsel.  I generally am aware of the child’s upbringing and the period that he has spent with the mother.  Likewise I am aware of the various allegations of conflict, upset and lack of responsibility as alleged.  I make no finding.  There may be real issues of substance abuse, alcohol abuse or behavioural issues, but they are a matter for evidence and another day and another time.

3. The immediate issue that I propose to deal with is to facilitate the child having time with both parents pending an adjourned hearing or mention of this matter in this list on 22 March. I have had the opportunity of making contact with the acting Director of Court Counselling, Ms S. She has been able to facilitate a 2 o'clock appointment today with a family consultant to begin to understand the family issues and concerns and, although it will not be in any full report, to give some assistance to the judge on the adjourned hearing date of matters that go to the best interests and welfare of the child. I will make an order pursuant to section 11F of the Family Law Act (1975) for both parties to attend at 2 o'clock this afternoon the appointment with the family consultant, and thereafter, if further appointments are available, to attend any and all further appointments as may be requested by that consultant.

4. The primary issue for the court is the welfare and best interests of the child.  I well understand that the parents put a number of issues or explanations before the court.  There may be substance to one or other of those issues.  I simply do not make any particular finding at this time.  I am satisfied, and it now seems to be a matter of some general agreement with counsel and parties that there will be a division of time between now and the adjourned hearing date.  I well understand that the father ideally wants more time with the child and, likewise, the mother significantly wants more time with the child.  The simple answer is that there will be in his best interests an apportionment of time on conditions that I believe will bring about a level of safety and security for him.

5. As to specific issues, the mother proposes to relocate to E.  That may occur but it will not occur before 22 March.  It is appropriate that the child remain at his school and in his current suburb, Epping, pending any further order that may be made on the adjourned date.  I specifically indicate that I have not endeavoured to resolve what school or what home or in what suburb the child should thereafter live.  I am doing no more, in a busy judicial duty list, than making orders to maintain some current circumstance pending the adjourned date.  The child is not to be taken out of Victoria by either parent. 

6. I am asked to make orders restraining the mother from any consumption of alcohol or from any consumption of prescribed medications save for the specific purpose of the medical or pharmaceutical requirement.  They are orders that are very difficult to monitor or enforce.  The real issue is that if the mother were to behave in such a manner in the future period that would bring about a recurrence of these issues and require medical or hospital treatment then that would be a very significant matter in the further determination of interim issues.  I record the concerns of the father in that regard and the request of his counsel for those specific injunctions, but I do not propose to pronounce them today.  These reasons, however, raise the issue and with both parents in court the message should be clearly understood that they need to be on their best behaviour and give the child their full-time attention and care without distraction or behaviour that would jeopardise the child and his welfare.

7. What I propose to do is in the context that the child has now been apart from the mother and his home as he knows, the rented premises, for several weeks.  The child is at school today.  I propose a structure whereby the mother will collect the child from school today, and the school will be appropriately notified by both practitioners.  The child will attend school tomorrow, the father will personally collect the child and, subject to his substantial attendance with the child, he will remain with him until delivered to school on Tuesday morning.  Thereafter the child will be with the mother and spend time with the mother and in her household until the following Friday after school.  The father will have the weekend and return the child to school the following Monday morning, being 19 March and then the child will be with the mother pending the adjourned hearing date in this court on 22 March.  There must be appropriate telephone time and discussion, and common sense should tell the father it should be meaningful to the child and free of overt pressure and influence. 

8. The father's counsel raises the need to issue subpoenas and I propose to grant leave that subpoenas of a medical nature, being directed to hospitals, doctors and like institutions can be issued and made returnable in the subpoenas list on Tuesday, 20 March.  That will of course necessitate those individuals and organisations having time to produce the documents, so the subpoenas will have to be issued and/or served this week, and time is clearly of the essence in that regard. 

9. I finally want to emphasise to the parties, but also put on record for the judge next hearing these interim applications, that I have not determined any issue of fact.  I have made orders that I regard as being pragmatic and having an issue of common sense, and in the interests of the child in the interim.  One would hope, but it is probably too much to expect in this case, that the parents would have some level of discussion or common sense approach on the basis that they are the parents and they should be making the primary decisions.  I record that sentiment in these extempore reasons but not with an abundance of confidence that such action will be taken by the parents.

10. Hopefully after the counselling that I require them to attend at 2 o'clock this day they might be more inclined to try and sort out issues between themselves with the child and as to their own behaviour and level of responsibility.

11. For those very brief reasons, and determining what is best on an interim basis for the child I have pronounced orders.  

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 15 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BAILEY & DENNIS