Bartin and Baddle

[2007] FamCA 1445

FAMILY COURT OF AUSTRALIA

BARTIN & BADDLE [2007] FamCA 1445

FAMILY LAW – PRACTICE AND PROCEDURE – Contravention application withdrawn in favour of progressing parenting proceedings listed in less adversarial trial process – Interim orders by consent – s 11F child dispute conference ordered

Family Law Act 1975 (Cth)

APPLICANT: Mr Bartin

RESPONDENT: Ms Baddle

FILE NUMBER: MLF 2228 of 2006

DATE DELIVERED: 5 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Portelli

SOLICITOR FOR THE APPLICANT: Victorian Aboriginal Legal Service

COUNSEL FOR THE RESPONDENT: Ms Clarke

SOLICITOR FOR THE RESPONDENT: Bellili King & Associates

COUNSEL FOR THE
INDEPENDENT CHILDREN’S LAWYER: No Appearance

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Danielle Webb Lawyer

Orders

1. That the applicant father have leave to amend his contravention application filed 26 October 2007 so that where there appears a reference to orders made on 15 February 2007 that be a reference to orders made on 1 January 2007. 

2. That the applicant father have leave to amend count three by deleting the reference to 5pm on 14 September 2007 and inserting in lieu thereof 6pm on

   
   

   14 September 2007. 

3. That the applicant father have leave to amend count four of his application by deleting the reference to 5pm on 12 October 2007 and inserting in lieu thereof 6pm on 12 October 2007. 

4. That notwithstanding any earlier direction to the contrary each parent file and serve their questionnaire for the Less Adversarial Trial process by not later than 4pm on Friday 14 December 2007, such questionnaires to where practicable have been completed by the parent personally and the parent be in a position on

   
   

   11 January 2008 to confirm on oath the accuracy of the information contained in the questionnaire if requested to do so by the learned presiding trial Judge. 

5. That paragraph 3(h) of the orders made on 8 January 2007 be discharged and in lieu thereof the father to communicate by telephone with the children B born … September 1997, N born … October 1999, C born … March 2001 and J born … February 2003.  To facilitate such communication the father place a telephone call to the mother’s mobile telephone service … each Wednesday between 6pm and 7pm and the mother will ensure that the telephone service is switched on, adequately charged and within mobile telephone range. 

6. That the mother advise the father promptly in writing of any alteration to the number of her telephone service, such notification to be sent to the father at his residential address currently being T.

7. That the father keep the mother advised at all times and provide her with prior notice of any change to his residential address, noting that at the time being it is

   
   

   T. 

8. That until further order the mother keep the father advised at all times and provide him with prior notice of any change to her residential address and / or the residential address of the children (or any of them) if that address be different to her own, noting that the children and the mother currently reside

   
   

   in the peninsula area. 

9. That the applicant father have leave to withdraw counts one and two of his contravention application filed 26 October 2007 be now being satisfied that there are arrangements in place for telephone communication. 

10. That the letter from Danielle Webb lawyer, who is the independent children’s lawyer, dated 28 November 2007 be marked exhibit “A” and remain on the court file in the sleeve nominated for reports. 

11. That the three (3) pharmacology reports relating to the father and being the results of supervised urine drug screening performed on 8 October 2007,

    
    

    15 October 2007 and 15 November 2006 be marked exhibit “F1” and remain on the court file in the sleeve maintained for reports. 

12. That the parties do all acts and things necessary to cause the children C, N and B to attend upon Dr S, psychologist in accordance with the referral made by Dr Z and referred to by him in the letter dated 5 December 2007 a copy of which I mark exhibit “M1” and direct remain on the file in the sleeve marked for reports. 

13. That the mother do all acts and things necessary to facilitate Dr S meeting with and interviewing the father provided that Dr S considers it desirable to do so, the father wishes to meet with Dr S and the father is to be solely responsible for reasonable costs of any such attendance by him on Dr S.

14. That the father have leave to withdraw counts three to eight of his contravention application filed 26 October 2007.

15. That in addition to any other extant order the father spend time with the children from 10am to 4pm on 15 December 2007 at a community Christmas Day celebration under the supervising of Ms TW a paternal aunt of the children. 

16. That the independent children’s lawyer make contact with Dr S and discuss for the purpose of ascertaining the progress of Dr S’ assessment, management and treatment of the children together with any recommendations which

    
    

    Dr S may have from time to time for the children to be able to spend time with the father. 

17. That in the event that the independent children’s lawyer is advised by

    
    

    Dr S of any recommendations which, if implemented, would involve the children spending time with the father, the independent children’s lawyer forthwith advise each other party to the proceedings of those recommendations in open correspondence and assist the parties to reach some resolution (if possible) as to time to be spent such as in the view of the independent children’s lawyer in the best interests of children. 

18. That pursuant to section 11F of the Family Law Act 1975 the parties attend a Child Dispute Conference (non privileged) between the mother and the father and Mr AN, family consultant, noting that as currently advised

    
    

    Mr AN will be the family consultant assigned to this matter on the first day of the Less Adversarial Trial process before Watt J on 11 January 2008. 

19. That for the avoidance of doubt Mr AN, family consultant is authorised to confer with Dr S, child psychologist. 

20. That my Associate provide the independent children’s lawyer with a sealed copy of these orders as a matter of urgency bringing to her attention those orders which relate to her. 

21. That the father provide to the mother visa their respective solicitors a contact telephone number and the residential address of Ms TW who is the supervisor referred to paragraph 15 hereof. 

22. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties, the independent children’s lawyer, the family consultant Mr AN and through the independent children’s lawyer to Dr S.

23. That pursuant to section 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 and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

24. That liberty be reserved to the independent children’s lawyer to apply to vary or set aside paragraphs 12, 16, 17, 18, 19 and 22 of this Order or as she may consider appropriate. 

AND THE COURT NOTES that the named children may see Dr S as early as Friday 7 December 2007. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2228 of 2006

MR BARTIN

Applicant

And

MS BADDLE  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

(EX TEMPORE)

1. The contravention application of the father filed on 26 October 2007 comes before me in the judicial duty list.  It was first returnable on 12 November 2007 but adjourned to today in order that personal service could be effected on the mother. 

2. These reasons deal with the circumstances in which the father's contravention application has been withdrawn and disposed of today.  

3. It is common ground that the substantive proceedings, which are parenting proceedings about the children B born in September 1997, N born in October 1999, C born in March 2001 and J born in February 2003, are listed to the first day of a less adversarial trial before Watt J on 11 January 2008. 

4. Returning to the father’s application, he alleged contraventions in five respects.  They were as follows:- 

   a)In counts 1 and 2 it was alleged that the mother had breached an order whereby the children were to have telephone communication with the father at reasonable times.  Early on in the hearing, the father withdrew those counts in favour of securing orders (by consent) that there be specified weekly telephone communication between him and the children;

   b)He alleges, by Counts 3 and 4, that the mother failed to comply with orders for alternate weekend time to be spent between him and the children on the weekends of 14 September 2007 and 12 October 2007. 

   The mother admits that no time was spent between the father and the children on those days but informed the court that she would contend that she had reasonable excuse for failing to comply with the orders.  It was foreshadowed that she would give evidence about concerns to do with the father's use of marijuana and, in particular, the children having on one occasion observed him to be using some sort equipment to ingest marijuana. The mother’s concerns were also foreshadowed in the correspondence attached to the father's affidavit in support of the contravention application.  She also alleges excessive drinking on the part of the father, excessive drinking on the part of the father's parents with whom the father has allegedly left the children and inappropriate hitting of the children. 

   The father, through his solicitor, said that there is no truth in those allegations;

   c)The father alleges that the mother failed to make the children available on the birthdays of B and C, being in September 2007 and in October 2007 respectively. 

   It is agreed that no time was spent by the father with the children on those dates and that those dates were the birthdays. However, the relevant order is paragraph 3(b) of the orders made on 8 January 2007 which provides that the father spend time with the children "on each of the children's birthdays overnight on a night and at times to be agreed upon by the parties".  The father conceded that he was not in a position to assert that there had been an agreement reached between him and the mother as to a specific night or time and that the mother has breached that agreement.

   d)Count 7 was that the mother failed to advise the proper officers of RW Primary School, that they were authorised to send to the father school reports, newsletters, school photographs, order forms, and the like. 

   On behalf of the mother it was said that as at the date of alleged
   non-compliance the children were not at RW Primary School but were enrolled to start at ST Primary School and did so.  It was not until 19 February 2007 that the children were transferred to RW Primary School.  The mother informed the court through her solicitor that she had advised each school of the father's details and provided the relevant authority.  The father contends otherwise. 

   I note that the children are now students at RW Primary School, so the up to date details and informations should be available from that school;

   e)In count 8 it was alleged by the father that the mother had failed to inform him of medical concerns in relation to the children or any of them and to provide details of the children's medical and/or health practitioners such as would enable him to consult with those practitioners in relation to the children or any of them. 

   The mother's solicitor informed the court that some of the children had had "medical concerns". She referred to head lice, and she also referred to the fact that B and C have been soiling themselves, requiring the mother, in the case of C, to attend school before the conclusion of the school day to take C home or attend to her. 

5. The father maintains that his contravention application in relation to counts 3, 4 and 8 are soundly based.  However, for various reasons which I will mention below, he has decided to withdraw the application. 

6. The father's stated reasons for withdrawing the application, which I accept, include that, in consultation with his solicitor, he understands that pursuing a contravention application with a view to having the mother penalised for contravention is not the most constructive way to approach this matter. 

7. The parties were able to agree that the children attend upon a therapist,

   
   

   Dr S. The father seeks to be involved in therapy or treatment or assessment which the three older children will receive from Dr S. 

8. Finally, the father’s assessment was that, proceeding with his contravention application was unlikely to result in a resumption of the current orders for him to spend time with the children which is the issue he most wants to pursue.  

9. I was informed that Mr AN, who will be the family consultant on the first day of the less adversarial trial process on 11 January 2008 (or at least I am currently advised that that is the case) is available to see the mother and the father on 17 February 2007 at 2 pm. Both parties seek to avail themselves of the early opportunity to see the family consultant. That will be a child dispute session in accordance with s 11F of the Family Law Act 1975. 

10. Mr AN’s involvement on 17 December 2007 will be reportable.  It will also enable the family consultant to be more informed about the family on the first day of the less adversarial trial than he may otherwise have been if he had not had an opportunity to meet with and make some assessment of the parents.  Additionally, Mr AN will have some opportunity to make contact the child psychologist Mr S, if he wishes to do so.

11. The father sought some time with the children between now and 11 January 2008. He is clearly very upset that he has not seen the children since September 2007, approximately nine weeks ago. All that could be agreed between the parties was some brief time to coincide with a Christmas community function and then under the supervision of a paternal aunt.  The father sought some time on or around Christmas Day.  The mother specified through her solicitor that she would require that any time be supervised by the maternal uncle who was in court. 

12. The father has declined supervised time with the children other than that which could be supervised by a member of his own family (who he is content for the mother to nominate). He says that he does not have a relationship with the maternal uncle, and that he would not be comfortable seeing B, N, C and J in his presence.  In any event, that is the father's decision and the extent to which the mother's position may be restrictive or otherwise, will no doubt be assessed as part of the substantive parenting proceedings in January 2008.  

13. Finally, the withdrawal of the father's various counts in his contravention application was stated on his behalf to be without prejudice to his entitlement to rely on any relevant facts or matters in the substantive parenting proceedings.  

14. I will direct that these reasons for judgment be made available to Mr AN, family consultant, and to the independent children's lawyer when they are published.  As should be apparent, the independent children’s lawyer was not a party to the contravention proceedings so she did not appear today.  

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  14 December 2007