Bland and Sparks

[2010] FamCA 450

FAMILY COURT OF AUSTRALIA

BLAND & SPARKS [2010] FamCA 450

FAMILY LAW – CHILDREN – Magellan list – interim application – enforcement application – where prior interim orders for shared care – where father has over held child – where mother has not provided sufficient evidence regarding adequate housing for the child – application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Bland

RESPONDENT: Ms Sparks

INDEPENDENT CHILDREN’S LAWYER: Mr Mulvaney

FILE NUMBER: MLC 2815 of 2009

DATE DELIVERED: 19 March 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 19 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Goddard

SOLICITOR FOR THE APPLICANT: Macgregor Solicitors

COUNSEL FOR THE RESPONDENT: Ms Jenkinson

SOLICITOR FOR THE RESPONDENT:	Victoria Legal Aid
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	TJ Mulvany & Co

Orders

IT IS ORDERED:

1. That until further order, each party is at liberty to cause subpoena to issue returnable in any subpoena list until the final hearing or on any date appointed by the Magellan Registrar for the return of subpoenae.

2. That subject to further order of the Court, all parties be at liberty to photocopy the documents produced on subpoenae issued at the behest of the independent children’s lawyer and if released for inspection.

3. That I adjourn the hearing of the mother’s Application in a Case filed 12 March 2010 and the father’s response thereto filed 19 March 2010 to the Senior Registrar’s Duty List for hearing on 29 March 2010 at 9.45 am AND IT IS NOTED that the principal issue is the circumstances in which the child S born … April 2005 can be returned to the mother.

4. That on or before Thursday 25 March 2010 at 4.00 pm the mother provide to the independent children’s lawyer:-

   (a)her residential address, being the address she proposes she and the child S will be accommodated into the foreseeable future;

   (b)       details of the basis of her occupation of that property; and

   (c)if it is leased premises, a copy of the lease in her name or a sub-lease in her name; and

   (d)any other relevant matters such as will enable the independent children’s lawyer to verify the information provided by the mother as to her occupation of the property and, at his discretion, to arrange an inspection of the premises.

5. That the reasons for judgment this day be transcribed and that copies be made available to the parties and to the Senior Registrar.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2815 of 2009

MR BLAND

Applicant

And

MS SPARKS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter concerns the child S, born in April 2005, and comes before me in the Magellan duty list.  It is the second enforcement application that the mother has brought to enforce her entitlement to equal time with the child.

2. The matter has had a long history of litigation, which effectively paused on 11 December 2009 when Brown J made interim orders confirming a week-about arrangement for the care of the child.  At that time, her Honour had the benefit of a very comprehensive family report by family consultant, Ms B, which pointed to serious deficits in the parenting of both parties and recommended that the matter be adjourned for 12 months on a shared-care basis.  At the expiration of 12 months, the court would consider making a decision about which parent is to be the primary carer of the child.  In the meantime, it was thought that the child should repeat four-year-old kinder. 

3. The parties consented to orders for a shared-care arrangement on a week about basis.  The child did not repeat four year old kinder; he commenced primary school.  Mr Mulvany, the independent children’s lawyer, has had several telephone conversations with the principal of the child’s school.  It seems that the school is a nurturing and responsible environment for the child. 

4. In her affidavit sworn 9 March 2010, the mother deposes to the circumstances in which she has not seen the child nor the child her since 12 January 2010.

5. The main difficulty for the mother at this point is proving that she has somewhere reasonable at which to accommodate the child.  Her own material refers to her having been required to move from one caravan to another caravan  and it seems that since she filed her material seven days ago, she has had yet another change of residence. Based on what I have been told by her counsel, it appears that she may shortly be having a further change of residence. 

6. Today the mother seems to be somewhat fixated on a reinstatement of the Order for week-about time.  It seems that she is sticking with that objective to the point of not providing the independent children’s lawyer or the court with such evidence as it reasonably requires to be satisfied that the physical living arrangements she has for the child are safe and viable.

7. I have discussed with the lawyers that, all things being equal and if accommodation was not an issue, one option open to the mother would be to apply for the child to be placed with her for a time equivalent to that for which the father has over-held him, which is approximately two months. 

8. Today, the father has filed material in response.  He seeks verification of appropriate accommodation arrangements by the mother.  He has suggested that the mother have time with the child after school each Tuesday and Thursday until 6.30 pm and for five hours on Saturdays with changeovers at the police station or the school, as the case may be.  The mother does not agree to those times.  She says it may well be more upsetting for the child than not seeing her at all.

9. I have adjourned the proceedings until 29 March 2010 on the basis that prior to that time, the mother must, if she is going to at all, put the independent children’s lawyer in a position where he can verify the appropriateness of her accommodation, her right to remain in the accommodation and her right to do so into the future, being something more than a matter of days or weeks. 

10. The mother has annexed to her material several pages of text messaging which she alleges came from the father.  Clearly, some of the text messaging is responsive and she has not included her contribution to the text dialogue.  I note that the father’s affidavit material does not address the text messages.  If they are sent by the father, they are a matter for considerable concern.  His lawyer today has obtained specific instructions and they are that whilst they may have come from the father’s phone, they were not sent by him.  The father postulates that the mother could have accessed his phone and sent them to herself for the purpose of manufacturing evidence in this case.  I suppose it is also the case that she just could have made them up in their entirety.  The father has his telephone with him in court.  The number attributed to the telephone is apparently correct.  I will leave it to the parties to do what they can to obtain corroborative evidence of the text messages being sent or not sent.

11. I bear in mind the primary task of weighing the benefit to the child of having a meaningful relationship with both parents.  He should be with his mother pursuant to the Order for week about care but his mother should also have some secure abode for them both. I do not regard the child as being at risk of physical or emotional harm in the mother’s care by virtue of her accommodation difficulties but even on an interim or holding order basis the mother should be offering more secure arrangements than she currently is offering.

12. It is apparent that the parents are each in their own individual way quite challenged.  The mother, in particular, has a problem with dealing with or relating to authority figures.  At this point, it would appear that she considers certain persons from the Department of Human Services, if not also the independent children’s lawyer, as people she does not trust.  This may be relevant on the issue of parental capacity at a later time.

13. The reason that I am satisfied that I must not accede today to the mother’s application for immediate return of the child into her care is because of the mother’s inability to house him and her apparent lack of insight into the difficulties which this causes for her case and, most significantly, for the child’s day to day life.  It is of great concern that the child has been without his mother’s care for two months.  I am not confident that whilst in the father’s care, the child is with the most capable of his two parents but at least he is in familiar surrounds and has somewhere to live into the foreseeable future.

14. I will adjourn the matter for hearing before the Senior Registrar Fitzgibbon which will allow the mother some little time to get her housing in order.  I haven’t made any orders for the filing of material in anticipation of the date before Senior Registrar Fitzgibbon. If anyone has relevant material, they should file and serve it as soon as possible so that there will not be an adjournment based on the ability of the other parent or the independent children’s lawyer having sufficient time to respond or to verify what is being said. 

15. It is my sincere hope that something can be sorted out before the Senior Registrar which would see the child reunited with his mother, on as significant and ongoing a basis as the child’s best interests permit.

16. I have made inquiries of the Director of Child Dispute Services.  Unfortunately, Ms B, who prepared the comprehensive report for the proceedings before Brown J, is not available to make any further, even limited, assessment of this family prior to the adjourned date or for some months hence.  Whilst the Senior Registrar and I would be assisted by the input of a family consultant, it is not practicable to obtain that assistance at this point.

17. The parenting arrangements for the child are less that satisfactory.  As best I can ascertain the situation on the very limited evidence which I have before me, the current arrangement is the best that can be done for the child in the interim.  It is probably the least worse result for him.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  31 May 2010