Carter and Carter

[2008] FamCA 822

FAMILY COURT OF AUSTRALIA

CARTER & CARTER [2008] FamCA 822

FAMILY LAW – CHILDREN – Interim Parenting Circumstances

Family Law Act 1975 (Cth)

APPLICANT: MR CARTER

RESPONDENT: MS CARTER

FILE NUMBER: MLF 3022 of 2006

DATE DELIVERED: 3 OCTOBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 3 OCTOBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR BREWER

SOLICITOR FOR THE APPLICANT: BAYSIDE SOLICITORS

COUNSEL FOR THE RESPONDENT: MR SCHETZER

SOLICITOR FOR THE RESPONDENT: SCHETZER CONSTANTINO

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS DOWLER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: DANIELLE WEBB LAWYER

ORDERS

IT IS ORDERED:

1. THAT paragraph 4 of the Orders pronounced 24 June 2008 be discharged.

2. THAT the wife and the children of the marriage H born …August, 1996, C born …July 1998, and L born … August 2000 continue to attend, as and when directed, upon M Hospital for the purposes of family and therapeutic counselling and participation in the parenting orders program.

3. IT IS REQUESTED that the counsellor engaged with the wife and children at M liaise and co-operate with the Independent Children’s Lawyer and, if applicable, B Children’s Contact Service for the purposes of arranging and instigating, at a future date to be determined, a supervised two (2) hour period(s) of time to be spent between the three children and the husband.

4. THAT this matter be referred to Registrar Kaur for case management and for that purpose a telephone conference be established, at the convenience of the Registrar, with all legal practitioners in or about the last week of November 2008.

5. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties and the Registrar.

6. THAT the Independent Children’s Lawyer be authorised to provide to M true copies of the various reports that have been prepared and presented to the Court in these proceedings from:

   (a)         Mr N;

   (b)         Dr R;

   (c)         Dr K;

   all such reports being provided for the purposes of background history and professional opinion that may be of assistance in the further management and progress of the issues in this case.

7. Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the husband and Independent Children’s Lawyer and solicitor appearing as counsel for the wife.

IT IS NOTED

A.THAT the Independent Children’s Lawyer did raise with the Court the issue of any future drug screen tests to which the husband should submit but, on balance, and because of the husband’s assurance through his counsel that he is no longer participating in any drug taking activity such tests were not ordered and are not presently required.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3022 of 2006

MR CARTER

Applicant

And

MS CARTER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Carter is before me on the return date as a second‑day less adversarial trial hearing.  Mr Brewer of counsel appears for the husband; Mr Schetzer, solicitor, appears for the wife, and Ms Dowler of counsel appears for the Independent Children's Lawyer.

2. This matter was last before me on 24 June 2008 and orders were made that day for the three children who are now aged 12, 10 and eight years respectively to live with the wife.  Further orders were made for the children, together with the wife, to attend upon the V Centre for therapeutic counselling and to address issues of their lack of a relationship with their father.

3. The structure of those orders provided thereafter for there to be two periods each of two hours by way of time to be spent by the father with the children at the B Contact Service Centre.

4. There has since those orders were pronounced been limited activity in this file.  Shortly after the orders were made and on or about 31 July 2008, the V Centre wrote to a Registrar of this court, advising that the structure of the orders were inappropriate, that counselling is not provided where post‑separation issues are the primary matter of concern.  The letter indicated that the centre did not accept referrals where Family Court proceedings are current and that the matter should be referred to the various family relationship centres that are being established pursuant to the direction and policy of the Federal Government.

5. Thereafter, and through efforts made by the independent children's lawyer, the M Hospital Service have consented to see the wife and children and a case manager or supervisor of that agency has, only in the last few days, had an extensive consultation period of some two and a half hours or thereabouts with the wife and children.  My current understanding is that that is confidential and therapeutic and certainly not reportable.

6. The independent children's lawyer has advised that there is some level of communication now established between M, B and her office, so that there may be able to be some coordination of future activity or reports or at least some trial time to be spent with at a future date.

7. I have observed and I am not critical of the delay in the months that elapsed post-June until now and there has clearly been substantial correspondence over recent days between all solicitors trying to bring some action and understanding to this matter. 

8. I am asked to formalise the order that the wife and three children attend on M and that I will do.  I will request formally a level of cooperation between M, B and the Independent Children's Lawyer, but no doubt that would have in any event occurred in this matter.

9. Clearly the matter is far from ready for hearing.  There is no reasonable, informative evidence before the court as to the best interests of the children, their wishes and domestic circumstances. 

10. Previously there have been a number of professionals involved in this case, and including:

    §Dr R, psychiatrist;

    §Mr N, Family Court consultant;

    §Dr K, psychologist.

11. I am asked by the consent of all legal practitioners to have the various reports from each of these professionals made available to M and, on that consent basis, I will direct the independent children's lawyer to make copies of these reports available.  Hopefully they will provide a more detailed history and background and fast-track ongoing counselling and suggested options for this family.

12. I will organise a telephone link between the parties and the Registrar now assigned responsibility for the management of this case, that is, Registrar Kaur, and that telephone link-up will need to be organised at her convenience in or about the last week of November of this year.  The purpose of such a link-up will be to establish the ongoing M counselling and the expected length and possible outcome therefrom.  The court must be open to any other reasonable suggestion but at this stage, from what I have heard today, there are no other realistic options.  I have an open mind as to whether or not the family relationship centres should be involved or whether there would be any benefit from them as an agency.  That is a matter that the independent children's lawyer needs to take on board and either discuss with other solicitors in the case or make the further recommendation to the court in that regard.

13. There has been partial compliance with paragraphs 10 and 11 of my earlier orders and I can only emphasise that that needs to be ongoing and the father has some understanding of the children's attendance and performance at school.

14. In the context of what I have earlier said, I will set no further court date.  Given the lack of material and effectively the position that this case has reached, I indicate I really do not regard myself as being part-heard in this matter.  It can remain in my docket.  I will not transfer it elsewhere, but this matter really can only be relisted when there is evidence available of real assistance and that is a matter falling to the discretion of the legal practitioners.

15. I will have that letter from the V Centre of 31 July 2008 marked as an exhibit to this judgment and it can be retained on the file.  My court officer will make copies available to legal practitioners if required.  I will have these brief reasons transcribed and placed upon the court file and made available to the parties and to Registrar Kaur.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Associate: 

Date: