Bake and Braun

[2007] FamCA 1108

FAMILY COURT OF AUSTRALIA

BAKE & BRAUN [2007] FamCA 1108

FAMILY LAW – PRACTICE AND PROCEDURE - Adjournment to the Defaulters’ List of parenting case which was not ready to proceed – matter to be listed for final hearing in March 2008 – further family report to be considered at telephone mention in December 2007. 

Family Law Act 1975 (Cth)

APPLICANT: Mr Bake

RESPONDENT: Ms Braun

INDEPENDENT CHILDREN’S LAWYER: McCarthy Hoey

FILE NUMBER: MLF 3740 of 2005

DATE DELIVERED: 20 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 20 August 2007

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms M.L. Mandelert

SOLICITOR FOR THE RESPONDENT: Power & Bennett

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms A.L. O'Connell

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

McCarthy Hoey

Orders

1. That the further hearing of the competing applications for parenting orders be referred to the Judicial Support Court Services Manager to be listed in the defaulter’s list on a date to be fixed in anticipation of this matter being allocated a hearing of not less than 3 days duration in March 2008. 

2. That this matter be listed for a telephone mention to be conducted by me and at which the representatives of each party and the parties themselves appear, at 9:30am on Tuesday 4 December 2007 for the purpose of checking on the progress of the matter and whether any further orders or directions ought to be made to get the matter ready for trial. 

3. That the independent children’s lawyer forthwith provide the mother’s general medical practitioner, Dr J and Ms M, psychologist, with a copy of the following documents:-

   (a)       This order;

   (b)       The report of Dr H dated 21 September 2005;

   (c)       The report of Mr P dated 17 May 2007.

4. That pursuant to section 65L of the Family Law Act 1975(Cth), the Manager of Child Dispute Services for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a family consultant to supervise compliance by the parties with the parenting order made this day (“the Order”) and to render to either party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, the Order, such supervisory counselling to operate for a period between now and the final hearing of this matter and to be reportable AND IT IS REQUESTED that Mr P be appointed the supervising family consultant.  However no report be prepared unless a further application in relation to the children is filed whilst this order remains in force, the court orders that a report be prepared or the family consultant of his / her own volition thinks a report should be prepared.

5. That there be orders in terms of the Minutes of Consent Orders, as amended, signed by the parties and dated 20 August 2007 (“the Minute”).

6. That my reasons for decision this day be transcribed and when transcribed a copy be providing to the practitioners for each of the parties.

7. That for the avoidance of doubt the Orders made today are interim orders, the proceedings are ongoing and the independent children’s lawyer is not discharged.

IT IS DIRECTED:

1. That the Minute be placed upon the Court file and marked “Exhibit A”.

2. That the solicitors for the independent children’s lawyer do engross the Minute and provide a clean, duly certified copy of the same (“the Copy”) to the Registry of this Court within 2 days.

3. That upon delivery of the Copy to the Court, the within orders be extracted and the Copy be attached thereto.

BY CONSENT IT IS ORDERED

1. That the children of the parties namely K born … March 1995, A born ... October 1996 and S born … November 1999 live with the mother.

2. That the father and the mother have shared parental responsibility in respect of the said children.

3. That the father spend time with the child K as follows:

   (a)on each second weekend of a four week cycle during school terms from 10.00am on Saturday until 6.00pm on Sunday in the Wimmera Region, provided the father provides suitable accommodation including a separate bed for the child;

   (b)on every fourth weekend of a four week cycle during school terms from 5.00pm Friday until 5.00pm Sunday at Melbourne and provided that if the father intends to travel with the child to Melbourne on Friday evening he is to arrive in the Wimmera Region on Thursday;

   (c)for one week during each of the school term holidays commencing in September 2007, such time to commence at 10.00am on the first Saturday of such holidays and continue until 12 noon on the second Saturday unless otherwise agreed in writing between the parties;

   (d)from 3.00pm until 7.00pm on the 25 December 2007 in the Wimmera Region;

   (e)during the long summer school holidays for a period of 10 days commencing on the 27 December or such other date as agreed between the parties in writing;

   (f)at such other times as may be agreed between the parties in writing.

4. The father communicate with the child K by telephone each Friday between 5.00pm and 5.30pm with the father to initiate such contact to the child on her mobile telephone, and the mother shall ensure that the mobile phone is adequately charged and switched on and in the child's possession at such times.

5. The father communicate with the children K, A and S by way of letters and cards, such letters and cards to be forwarded to the mother and the mother to ensure the children receive such correspondence.

6. That on or before Tuesday the 4 September 2007 the mother deliver the referral from her general practitioner to Ms M, obtain an appointment and thereafter the mother and the child A born … October 1996 attend regular counselling with Ms M, psychologist in the Wimmera Region and the father meet the costs of such counselling in excess of the Medicare rebate.

7. The purpose of counselling referred to in paragraph 6 herein be to follow the recommendations of Dr H in his report dated 21 September 2005 and the recommendations of Mr P in his report dated 17 May 2007 and the Independent Children's Lawyer provide copies of each report to Ms M as soon as practicable.

8. That the mother do all things necessary to obtain a referral from her general practitioner within seven (7) days for the counselling session referred to in paragraph 6 and the mother do all things necessary to obtain a rebate from Medicare for each session and the rebate is to be applied toward offsetting costs of each following session.

9. The father is to ensure the children are not exposed to cigarette smoke in confined spaces while they are in his care.

10. That the mother will abide by the recommendations if any of Ms M in relation to re-establishing the children A and S' relationship with their father.

11. That the father complete an anger management course and provide a certificate of completion to the mother's solicitor.

12. That the mother provide to the Independent Children's Lawyer an authority enabling the Independent Children's Lawyer to confer directly with Ms M as to the progress of the counselling referred to in paragraph 6.

13. That the matter be further adjourned to the Defaulter's List on a date to be fixed.

14. (Deleted).

15. That the mother is not to proceed with having the children or any other them attend counselling through CASA.

16. That the mother in compliance with paragraph 1 of the Orders made the 18 July 2007 will enrol in and complete a post separation parenting course subject to such course being offered in the Wimmera Region and she will provide a Certificate of Completion to each of the father and the Independent Children's Lawyer.

17. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED

A.The mother be at liberty to take the child S to counselling as per paragraph (16) upon the recommendations if any of Ms M.

B.The father will make payments pursuant to paragraph (16) herein either directly to Ms M or to the mother's solicitor.

C.That the father denies the necessity for the order contained in paragraph (19).

IT IS NOTED that publication of this judgment under the pseudonym Bake & Braun is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3740 of 2005

MR BAKE  

Applicant

And

MS BRAUN  

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me as the final defended hearing of competing applications concerning three girls: K, born in March 1995; A, born in October 1996 and S, born in November 1999. 

2. Very briefly, the parents separated in about 2001 in circumstances where the three girls and the mother were living in the Wimmera Region and the father was living in the Melbourne metropolitan area.  The father continued to see the children regularly because he has a caravan in the Wimmera Region.  It is an extensive trip of four or more hours between Melbourne and the Wimmera Region.

3. The mother alleges that she has a spinal injury which precludes her from driving a car that distance or from being a passenger in a car for that distance.  She says, for instance, that it took her three days to travel by car from the Wimmera Region to Melbourne for today's hearing with the consequence that the children have not been at school since last Tuesday. 

4. The proceedings were originally instituted in the Federal Magistrates Court on 10 May 2005.  Procedurally the matter was transferred into this court in November 2005.  On 23 January 2006 they were put into the list of cases awaiting allocation of a trial notice listing.  On 18 September 2006 further interim orders were made in relation to parenting matters, in particular what time K would spend with the father on a regular overnight basis and the fact that the two younger children, A and S, were then refusing to attend to spend time with the father face to face. 

5. On 2 March 2007 a trial notice listing was conducted, a family report ordered and the matter referred for a pre-trial conference on 7 June 2007.  The family report was the second family report, the first had been undertaken in the Federal Magistrates Court part of the proceedings, by Dr H.  His report is dated 21 September 2005 and in it he made some firm recommendations in relation to what should happen to get the care of the children back on track, in particular to get the three children seeing their father regularly. 

6. Dr H discerned that it was in the benefit of the children to see their father regularly and said that the key to overcoming the problems, as they then existed, were, in his assessment, in the hands of the mother.  He said that the mother needed:-

   … specialist help in dealing with her problems and enabling her to see how her behaviours are contributing to the breakdown in relationship between [the child A] and her father.  [The mother] may have good reasons to think as she does about [the father], but these are [A]'s problems and he is still her father.

7. He made four recommendations which are as follows:-

   [46]. It is this writer’s opinion that there are four urgent needs with respect to the wellbeing of this family group. First, [the mother] should attend upon a professional counselling/clinical psychologist or psychiatrist for assistance in developing her capacity to provide a psychologically secure home environment for her children that acknowledges her responsibilities toward her children’s rights to know and love their father and explores ways in which that can effectively happen to her and her children’s benefit.

   [47]. Second, it also seems absolutely imperative that [the child A] be referred to an educational and developmental psychologist for help in coming to terms with how and when she can resume with [the father]. This matter is very urgent.

   [48]. Third, [the mother] and [the father] need to utilise a method for the payment of maintenance moneys that does not involve a child having anything to do with the transaction and that any discussions about such matters be undertaken away from the children’s hearing or knowledge.

   [49]. Fourth, for reasons that hopefully will not repeat themselves, there is a perception that [the child K] has received favourable treatment at the expense of her sisters. It therefore seems also to be imperative that the father seek counselling as to how best he can demonstrate that he can and does treat all three children equally.

8. The next report was done by Mr P, who is a family consultant attached to this registry of the court.  He saw the family on 13 April 2007 and made the following recommendations:-

   [53]. It is recommended that [K] continue to spend alternate weekends with her father, spending one weekend in [the Wimmera Region] and one weekend in Melbourne in every four week cycle.

   [54]. It is recommended that the mother and [the child A] attend for individual therapeutic counselling, in accordance with the recommendations of the report completed by [Dr H] (dated 21 September 2005) and the consent orders dated 24 November 2005. Alternatively, if such counselling is unavailable to the mother, it is recommended that she completes an approved Parenting After Separation course.

   [55]. It is recommended that the children be permitted to travel interstate and/or overseas with the father, subject to these visits occurring predominately in school holidays and with the father having provided the mother with sufficient prior notice, including a detailed itinerary of the proposed trip.

   [56]. It is recommended that the father spends time with [A] and [S] during the day while in [the Wimmera Region] on one weekend in each four week cycle, if this proves to be consistent with the children’s future wishes.

9. A pre-trial conference was convened on 7 June 2007 by Registrar Kaur.  The husband represented himself.  Mr Crabtree, solicitor, appeared on behalf of the mother and Mr Shand was the independent children's lawyer who attended.  The matter was then set down for final hearing on 18 July 2007, estimated to take three days.  It was the case, however, that none of the counselling, which had been recommended by Dr H in September 2005 had been conducted.  There were arrangements in place for the child A to attend counselling provided by a sexual abuse clinic, although not for sexual abuse, but that is all that had happened.  The mother alleges that she has been unable to source or attend counselling which is sufficiently proximate to her house and, as I have indicated, she says she cannot travel. 

10. The matter came on for hearing on 18 July 2007 before Mushin J.  The matter was not reached.  Apart from an order directing that the mother attend a post‑separation parenting course, which she had deposed that she had no need of attending, no significant orders were made.  The matter was rolled over for a hearing commencing today before me, estimated to take three days. 

11. What concerns me is that, on 18 July 2007, it would have been abundantly clear to the practitioners that the matter could not progress between 18 July 2007 and 20 August 2007.  However, the matter was set down for another hearing nonetheless.  It would have been obvious that very little could be achieved at today's hearing and yet everyone has been brought to court, the children have been out of school for more than a week.  It is fortunate, given that they are at court again today, there have been further inquiries and a psychologist located in the Wimmera Region has been identified but, surely, that could have been done without everyone coming to court. 

12. The mother is confident of getting a referral from her general medical practitioner for therapeutic counselling for herself, given the opinions expressed by Dr H and by Mr P.  Insofar as the counselling will involve the child A, it is not said that she has a treatable psychological condition and it may be that the cost of her part of the counselling is not rebateable through Medicare. 

13. I note that at the commencement of this matter I indicated to the independent children's lawyer that if the matter were to proceed I required to hear evidence from the person in charge of the Family Relationship Centre located in the Wimmera Region.  That evidence would have been in relation to what remote services they could provide to someone who could not travel outside of the Wimmera Region. That is not necessary, given that the parties have now identified Ms M, psychologist, as a professional who can assist the family. 

14. The parties have entered into orders which they seek by consent and which

    
    

    I am content to make with a few alterations.  One alteration is that I will not appoint a hearing in six months time and I will not do that because, in my view, the matter should not have been rolled over for hearing on the last occasion and I am concerned that we would simply end up here six months later with the possibility of nothing further having happened.  I will send the matter to the defaulters' list on a date to be fixed and from there it is my expectation that the matter should be accommodated in a further defended hearing of some three days' duration in March 2008. 

15. However, in case something in the system goes amiss or there is noncompliance with the preliminary steps which today's order provides the parties should take, I will look at the matter again on 4 December 2007 at a telephone mention.  At that telephone mention it will be necessary for the parties to appear.  If they are represented, they should be in the office of their legal practitioner or, by arrangement with my Associate they can be on a separate landline telephone providing they are linked in.  The purpose of the mention on 4 December is to see that the matter is progressing appropriately. 

    
    

    I cannot say at this stage whether the matter will have made the defaulters' list at that time. 

16. On 4 December 2007 I may consider either reserving liberty to the parties to apply for a further report by Mr P or to making the order myself. In any event, between now and the final hearing I will appoint a supervising family consultant pursuant to s 65L and I request that person be Mr P. That will not in any way disqualify him from attending to the matter in the future on a reportable basis. It is the case, however, that the court should be notified or the parties be able to access the court in the event of alleged noncompliance or something going amiss with the listing of the matter.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  20 September 2007