Bone and Gard

[2009] FamCA 626

FAMILY COURT OF AUSTRALIA

BONE & GARD [2009] FamCA 626

FAMILY LAW – CONSENT ORDERS – Children

Family Law Act 1975 (Cth)

APPLICANT: Mr Bone

RESPONDENT: Ms Gard

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1278 of 2006

DATE DELIVERED: 13 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Peter Lynch

COUNSEL FOR THE RESPONDENT: Ms Spehr

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

COUNSEL FOR THE INDEPENDENT LAWYER: Ms Dorian

INDEPENDENT CHILDREN’S LAWYER Schetzer Constantinou

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the father engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That 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 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.

4. That my reasons be transcribed and placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1278 of 2006

MR BONE

Applicant

And

MS GARD

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is a matter that has been in my defended list of cases for some time.  I have had the case being ready for trial for quite a long time and as late as a few days ago, an affidavit was filed, setting out what could only be described as an horrendous history of violence, if, in fact, it was true.  None of that evidence has been tested.  What I am concerned about is that I am asked now to make orders in relation to a child, who is only five years of age.  As a five-year-old, she is a vulnerable child not only in the sense of physical violence, but also in the sense of psychological problems as well.

2. All of the evidence that I have seen suggests that the child has a wonderful relationship with her father and a wonderful relationship with her mother.  It is just that the mother and the father can’t get along together.  The court obviously has to make orders only in the circumstances where it is satisfied that they are in the best interests of the child.  That is difficult to do when there are serious allegations which the court should take seriously.  I do take them seriously, but I have the independent children’s lawyer telling me today that the risks associated with these orders for the child are minimised. 

3. The father in this case has done a lot of work.  He has attended courses.  He has pushed as hard as he possibly can to move the relationship with his daughter on.  The mother is now, under these orders, going to be attending a psychologist, hopefully, for the purposes of understanding the role that the father is going to play in the child’s life.  Whilst the risks may be minimised, it is clear they are still there.  The parties acknowledge that in the event that they have got a problem in the future, they are going to go off to mediation.  That’s commendable. 

4. But ultimately, the problem lies with the parents, not with the court.  The parents have to work out what is best for the child.  I am satisfied in these circumstances that these orders are in her best interests, notwithstanding there are some reservations about the background of the matter.  I commend the parties for what they have done, but I hope that they really mean what they say.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  20 July 2009