CAI & BACON

[2015] FamCA 212

FAMILY COURT OF AUSTRALIA

CAI & BACON [2015] FamCA 212

FAMILY LAW – PARENTING PROCEEDINGS — contravention application withdrawn — make up time — father informs Court that he cannot drive safely — psychiatric examination of both parties

APPLICANT: Mr Cai

RESPONDENT: Ms Bacon

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3875 of 2013

DATE DELIVERED: 3 February 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Louis Holdway Solicitors

Orders

BY CONSENT IT IS ORDERED THAT

1.The applicant father have leave to withdraw his contravention application filed on 5 December 2014.

2.The applicant father spend additional time with the child B born … 2013 on Sunday 8 February 2015 from 10.00 am to 3.00 pm for this date only.

3.Paragraph 11 of the Orders made on 15 July 2013 be varied to allow the parties to communicate via sms and email AND IT IS NOTED that the father’s email address is … and the mother’s email address is ...

IT IS FURTHER ORDERED BY THE COURT THAT:

4.This matter be placed in the list of cases awaiting allocation to a judicial docket.

5.In lieu of the directions hearing this day Registrar Moser conduct a telephone mention of this matter on 6 May 2015 at a time to be advised to the parties in writing.

6.The intervention order made on 8 June 2014 (expires on 18 June 2016) be placed on the Court file.

7.Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrar Moser for the return of subpoena.

8.That pursuant to Section 68L(2) of the Family Law Act 1975 the child B born … 2013 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the independent children’s lawyer give early attention to preparation of a psychiatric assessment of both parents by a psychiatrist of his/her choice.

9.That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

10.That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

11.The independent children’s lawyer initiate negotiations with the parties about responsibility for driving for spend time arrangements and, unless the father’s request for the mother to be responsible for some transport is resolved by 1 April 2015, the father file and serve any application he wishes to make in relation to interim spend time arrangements and any such application be listed to the next available hearing date in the Senior Registrar’s hearing list at 10.00 am.

12.The mother and father forthwith do all acts and things necessary to apply to C Contact Centre, or such other contact centre as the independent children’s lawyer suggests, for inclusion in the program to facilitate changeover times although the mother is compelled to alter current arrangements until further order of the Court.

13.That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

IT IS DIRECTED:

14.That the signed minute of consent as amended be marked Exhibit “A” and remain on the Court file.

15.My reasons for decision be transcribed and when settled a copy be placed on the Court file and made available to the parties.

AND IT IS NOTED that the father disclosed a high blood pressure condition for which he is successfully treated but will forthwith consult a medical practitioner about his drowsiness when driving a motor vehicle.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cai & Bacon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3875 of 2013

Mr Cai

Applicant

And

Ms Bacon

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. Very briefly, this matter comes before me as the return date of a contravention application filed by the father on 5 December 2004.  The contravention application relates to the father’s time with the parties’ only child, B, who is about to turn two years of age. 

2. The father represents himself but has done so capably today and has attended upon the duty lawyer. 

3. Ms Fielding, solicitor, appears on behalf of the mother, who has attended Court in the company of her brother.

4. The parties have had discussions, the result of which is that the father has withdrawn his contravention application.  He does so without pursuing other instances in which, he said from the bar table, that the child had not been made available to him. 

5. For the mother’s part, it was indicated that whilst time did not take place in accordance with orders made on 13 December 2013, that was because there was an intervening private arrangement reached at mediation for time to be spent on Mondays rather than Saturdays.

6. In any event, the parties have – sensibly, in my view – agreed that the contravention application can be withdrawn.  The father is going to have extra time with the child on Sunday, 8 February 2015, which will mean that, for the first time, he has the child on consecutive days for five hours on each day.

7. The proceedings are not yet in the pool of cases awaiting allocation to a judge.  They were to be the subject of a directions hearing to be conducted by telephone by Ms Moser today.  However, the directions hearing was vacated upon the father having filed a contravention application.

8. I have today placed the matter in the pool of cases awaiting allocation to a judge’s docket.  It’s going to be some time before a judge becomes available to take the matter, and I am concerned that, during that waiting period, the proceedings should progress as much as possible, and of course, at all times, the child’s best interests need to be safeguarded, in terms of physical and emotional safety.

9. The parties describe a situation where the major difficulty for them is communication with each other.  The mother seeks sole parental responsibility.  The father opposes it and seeks co-parenting.  There is no communication between the parties which is effective at the moment. 

10. An intervention order was made on 18 June 2014 (which expires on 18 June 2016) which prohibits the father coming into contact with the mother save for the purpose of spending time with the child.  An earlier order made on 15 July 2013 provides for the parties to communicate via SMS texting.  Today, the parties have sensibly expanded that order to include their respective email facilities, so that the parties can now communicate by email.

11. Both says that the other party is uncooperative.  It seems to me that if the parties communicate by email, come what may, there’s going to be a body of evidence thereby generated, and capable of being produced, that will either prove or disprove or demonstrate what one or other party says about how they communicate with one another and the tone and manner of the communications.

12. I am concerned about a collateral matter raised by the father.  Whilst it isn’t the subject of any application which is currently before the court, and the contravention application had already been withdrawn, he did want to tell me about travelling associated with him spending time with the child.

13. The father lives in Suburb D, and the mother lives in Suburb E, and that’s where they lived when the last set of parenting orders was made, in December 2013. 

14. I am alarmed that the father says that, in the extensive travel which is required for time to be spent, he finds that he falls asleep at the wheel of his car.  He clarified this to subsequently to say that he feels like he is going to fall to sleep on the way home from returning the child to the mother.  It is a two hour journey each way.  However, that’s not really what he said in the beginning. 

15. I’ve asked the father about his medical condition.  He is treated for high blood pressure and, as best he knows, that is under control.  He has no psychiatric or psychological ongoing treatment.  Still, I am concerned that the father says that he cannot manage to drive in a motor vehicle for up to four hours on a day without falling asleep.  It might not be an engrossing activity, but he needs to be able to remain awake and alert at the wheel.

16. I will appoint an independent children’s lawyer and make their earliest priority a psychiatric assessment of the mother and the father.  Ms F, family consultant, has done a parent and children’s issues assessment.  That is dated 11 July 2013.  In that assessment, she indicates that a psychiatric assessment of both parties would be illuminating for the family consultant.  So that should be done sooner rather than later.

17. The mother is employed but is of modest financial means.  The father is not employed.  He works casually as a kitchen hand, but he occupies his own unencumbered home.  So the first thing the independent children’s lawyer should do is look at the feasibility of a psychiatric assessment by one of the handful of practitioners who regularly assess parties in proceedings before this Court.  I am not interested in an assessment which merely reports that neither party has a psychiatric disability or condition.  I want an assessment which will go into some of the psychological aspects of how the parties function.

18. Something should be done about the transport associated with spending time.  At the moment, the father does all of the travel.  The mother says that’s necessary because he actually collects the child from her parents’ home when she is not there. 

RECORDED  :  NOT TRANSCRIBED

1. There is a very modest child support assessment in place of some $17 a fortnight.  The father seeks that the mother share the driving associated with time spent.  He points to the fact that when time was being supervised, the mother delivered the child to a contact centre which was very close to where he lives.  It seems to me that a reasonable solution would be a mid-point. 

2. I was impressed by Mr Cai rising to his feet and suggesting a contact centre to facilitate changeovers.  Doing the best that I can, it seems that C Contact Centre might be a good facility for the parties.  I will require the parents to make application to it or such other centre as the independent children’s lawyer, in due course, suggests. 

3. I do not mean that, absent agreement, the parties have to commence using the contact centre, but when the matter proceeds to court, as it may in April 2015, they should have made the application so that it is a real option if it is thought appropriate by the Court. 

4. In order to bring the matter back to court for that determination, the husband will have to file and serve an application seeking orders in that respect.

5. I will otherwise list this matter for directions before Registrar Moser on 6 May 2015.  This is because, if the parties reach some agreement about the transport associated with time, and/or the father doesn’t seek to prosecute an application in that respect, I want the registrar to conduct whatever sort of directions hearing she would have conducted today.  The registrar can be apprised of the involvement of the independent children’s lawyer and the progress of any psychiatric assessment. 

6. The parties have a very long road ahead of them in parenting the child and having to cooperate with each other.  I expect that the final proceedings between them will not be reached by this Court for some months hence, if not nearly a year.  Therefore, there needs to be some fine-tuning in the meantime. 

7. I have provided for the matter to go to the Senior Registrar because it is not docketed to me.  If that’s not convenient, the matter can come back to me for mention, although I may well have less time than the Senior Registrar would have to devote to it.  This is the background as to why I have made the orders set out at the beginning of these reasons.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 February 2015.

Associate: 

Date:  31 March 2015