Creswick and Lewis

[2007] FamCA 8

FAMILY COURT OF AUSTRALIA

CRESWICK & LEWIS [2007] FamCA 8

FAMILY LAW – ORDERS - Interim Case Management Orders - Time to be spent pending final hearing

Family Law Act 1975 (Cth)

APPLICANT: Mr Creswick

RESPONDENT: Ms Lewis

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3358 of 2005

DATE DELIVERED: 9 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 9 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Boymal

SOLICITOR FOR THE APPLICANT: Lucas & Marshman

COUNSEL FOR THE RESPONDENT: Mr Hall

SOLICITOR FOR THE RESPONDENT: Romeo & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Hebblewhite

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Bowlen Dunstan & Associates

Orders

1. THAT paragraph 19(d) and paragraph 20 of the Orders made 2 November 2006 be discharged.

2. THAT until the commencement of the defended hearing, listed for 26 March 2007 each of the children E born in February 2002 and D born in November 2003 live with the father:

   (i)         between 9 January 2007 and 20 January 2007 (inclusive);

   (ii)        between 10 February 2007 and 24 February 2007 (inclusive); and

   (iii)       between 3 March 2007 and 17 March 2007 (inclusive).

3. THAT the children live with the mother at all other times.

4. THAT paragraph 21 of the Order of 2 November 2006 be varied to substitute the time on each Tuesday and Thursday to be between 6.30 p.m. and 7.00 p.m. with each of the parties, with the assistance of the Independent Children’s Lawyer if that is available, to make arrangements for a meaningful and successful telephone conversation.

5. THAT on E’s birthday, in February 2007 the mother is to have telephone contact of up to one (1) hour at a time of her choosing but between the hours of 1.00 p.m. and 7.30 p.m.

6. THAT paragraph 6 of the Order of the Federal Magistrates Court made 27 October 2005 be varied to provide that each party provide random drug screen tests, at the request of the Independent Children’s Lawyer, on an approximate fortnightly basis.

7. THAT the Family Consultant’s report of Ms B dated 5 January 2007 be received into evidence subject to all issues of cross examination in the listed defended hearing.

8. THAT on or before Friday 9 March 2007 the solicitors for the father make, file and serve affidavits (only) from the following witnesses:

   (a)         the father;
   (b)         Ms G;
   (c)         Mrs C; and
   (d)         Mrs M;
   together with an updated Form 13 financial statement of the father.

9. THAT on or before Friday 16 March 2007 the solicitors for the mother make, file and serve affidavits (only) from the following witnesses:

   (a)         the mother;
   (b)         Mrs L;
   (c)         Mr M; and
   (d)         Mr C;
   together with an updated Form 13 financial statement of the mother.

10. THAT for purposes of the collection of the children this day the changeover will occur at 2.00 p.m. at the local Police Station.

11. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the solicitors for the parties, the Independent Children’s Lawyer and the Family Consultant.

12. THAT the matter be listed as a defended hearing before Young J on Monday 26 March 2007.

13. THAT counsel for all parties file a chronology, appropriate practice directions and legal submissions on or before 4.00 p.m. Tuesday 22 March 2007.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3358 of 2005

Mr Creswick

Applicant

and

Ms Lewis

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The matter of L v C was listed today to facilitate the return to court of a comprehensive report which has been prepared by the family consultant Ms B.  That report is dated 5 January 2007 and I will order that it be received into evidence subject to the consultant being cross‑examined when the defended hearing in this matter commences on 26 March 2007.  I have indicated that I have read the report.  I have stood the matter down today to allow counsel to read and take instructions on the report.  Since this matter was last before me there has been a detailed affidavit filed on behalf of the mother on 8 January 2007.  Again, I have allowed some time to the father's counsel to take instructions on that.

2. Under the existing orders of 2 November 2006, there is a shared time spent arrangement with the children living with the mother at designated times and with the father at all other times.  Currently the children have been with the mother from Boxing Day, and are due to travel with the father to his home at W this afternoon.  Given that the children have now spent the better part of a fortnight with their mother, I certainly propose to allow them to return with the father to W for a period during January to be spent with him, his extended family and his new partner and her children.

3. The current interim orders made prior to the release of the consultant's report otherwise provide for a fortnightly (two week) cycle commencing Saturday 20 January with the mother.  There are no issues of school that arise in the interim as E will not be attending formally at school this year, but will be involved in pre-school activities and my understanding is that in the past both parents have arranged, at different locations, some form of pre-school attendance for him.

4. I have had submissions from counsel and also from the independent children's lawyer.  Certainly I understand that Mr Hebblewhite's position, on instructions, is to modify the current orders and give some greater certainty to each of the children and insure they spend more time in one location.  Their current position would be for more time to be spent with the mother than with the father pending the adjourned hearing date.  There are particular issues in this case of travel and changeover.  Given that the father resides in W and the mother now resides in a suburb of Melbourne, neither party have a licence to drive a motor vehicle and rely entirely upon others for changeover which currently occurs at the B Police Station on Saturdays or otherwise as ordered.

5. On balance and having regard to the hearing date that is fixed at 26 March 2007, I propose to modify only slightly the current arrangements that otherwise would have been ongoing.  What I propose to do is to nominate a specific period in each of January, February and March when the children will be with their father.  Otherwise at all times they can live with their mother.  The orders will be intentionally structured on the basis that the children live with their father for nominated periods and otherwise live with the mother so there is no advantage seen to be obtained from the orders.  I intend them to be neutral pending the further hearing. 

6. Whilst I do not know the outcome of the final hearing and that will depend on evidence and the way the parties and their witnesses present to the court, and of course the content of Ms B's detailed report, the likely outcome is simply that these children cannot be expected to travel with the regularity and distance as is now the case. The amendments to the Family Law Act 1975 clearly set out the primary and additional considerations as to what are in the best interests of the children and at the hearing those matters will be paramount.

7. What I now understand is that the children are to return to W with their father this afternoon.  Under the current order that is to be at 6 pm but in any event I propose to vary that time to make it more convenient to the children to leave earlier today and unless there are reasons to the contrary, I would make that at 1 o'clock so that the father can return the children in daylight and without haste to W.

8. I propose to fix three periods and they will be as follows; January 9-20 inclusive, February 10-24 inclusive and March 3-17 inclusive, otherwise the children will live with their mother.  I propose to vary paragraph 6 of the order of the Federal Magistrates Court made 27 October 2005, only to the extent of the regularity of the random drug screens.  I require the screens, subject to the date to be nominated by the Independent Children's Lawyer, to be on an approximate fortnightly basis. 

9. There are complaints made to the court about telephone contact.  At the moment the person with whom the children are not then residing is entitled to speak to the children by telephone on each Tuesday and Thursday at reasonable times.  I propose to substitute for the expression "reasonable times" a specific time slot that is between 6.30 p.m. and 7.00 p.m.  How the parents cooperate and facilitate that arrangement I leave to them or to the expertise of the Independent Children's Lawyer.  I am not confident that there will be cooperation but only time will tell.

10. I intend to be somewhat interventionist in the running of this case.  I will make orders for the filing of affidavits but those affidavits are to be restricted to relevant matters, not hearsay and not a wish list of events and opportunities.  What I want before the court and what I charge legal practitioners with drawing affidavits that are relevant to factual circumstances and the welfare and best interests of the children.  This case has the potential to become an inter-family fight but that will not occur.  Ultimately it is the best interests of the children and that will be strictly considered in the context of the primary and additional considerations.

11. On behalf of the father, Ms Boymal has indicated that her witnesses will be her client, her client's partner, his mother and an aunt, Ms M.  On behalf of the mother Mr Hall has indicated the witnesses will be his client, her friend or partner, her mother and the husband's father Mr C.  How helpful each of the grandparents will be in their evidence is a matter upon which I reserve all comment, but this case will not be allowed to degenerate into any personal attack, one against the other, and practitioners must understand that right at the outset in the way affidavits are drawn.

12. There is clearly some level of communal warfare going on between individuals or different families in this case but that is not going to help, rather it is going to hinder the way cases are presented to court and the outcome.  Somewhere along the lines, as unlikely as it may be, there needs to be some level of commonsense and respect in this case.  I think I said that in the brief reasons in November and clearly that has not been understood nor acted upon, so I should have little hope that there is going to be an improvement in family dynamics or relationships.

13. In any event this case is about two young children who deserve the best that life can offer them through their parents and extended family and that will be the sole focus of my direction in this case.  I record that the mother did seek to substantially limit the period the father has with the children and her proposal pending further hearing was either one week in six weeks, or otherwise a lesser period as I might determine arising out of the contents of the consultant's report which is now to be received into evidence subject to cross‑examination of Ms B by the practitioners on the adjourned pended hearing date. 

14. Whilst I have considered the submissions of Mr Hall, clearly in view of what I have indicated will be the orders I do not propose to unnecessarily interfere with the current structure when this matter will be heard in less than three months. 

15. This is the final paragraph of each judgment.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 17 January 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Creswick & Lewis