Culliss and McMaster (No. 3)

[2007] FamCA 1386

FAMILY COURT OF AUSTRALIA

CULLISS & MCMASTER (NO. 3) [2007] FamCA 1386

FAMILY LAW – CHILDREN – Interim Children and Case Management Orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Culliss

RESPONDENT: Mr McMaster

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: MLF 985 of 2006

DATE DELIVERED: 22 November 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 22 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jenkins

SOLICITOR FOR THE APPLICANT: Pearsons Schetzer & Associates

COUNSEL FOR THE RESPONDENT: Mr Zemljak

SOLICITOR FOR THE RESPONDENT: Tolhurst Druce & Emmerson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Victoria

ORDERS

1. THAT the further hearing of all extant children’s applications be listed for an interim hearing at 10.00 a.m. on 3 January 2008 before Young J.

2. THAT on or before Friday 7 December 2007 the father make, file and serve:

   §an amended application as to all interim orders sought;

   §his further affidavit upon which he intends to rely and inclusive of a summary of his current financial circumstances.

3. THAT on or before Friday 14 December 2007 the mother make, file and serve:

   §an amended response as to all interim orders sought;

   §her further affidavit upon which she intends to rely and inclusive of a summary of her current financial circumstances.

4. THAT on or before Friday 21 December 2007 the Independent Children’s Lawyer file such summary of orders or outcome as is sought or recommended by them.

5. THAT I direct both the mother and father to attend at Court punctually on the adjourned hearing date.

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

IT IS NOTED

A.THAT the parties did attend a round table dispute management session organised through Victoria Legal Aid, Mr R, but that was unsuccessful although the parties have indicated that they would likely resume such discussions in the same arranged session in approximately six months time.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 985 of 2006

MS CULLISS  

Applicant

And

MR MCMASTER  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In the matter of McMaster & Culliss and the Independent Children's Lawyer the proceedings are before me for mention this day.  Ms Jenkins of counsel appears for the applicant father, Mr Zemljak, solicitor, for the respondent mother and Ms Agresta of counsel appears for the child.  This matter has been before me on a considerable number of occasions throughout the 2006-2007 calendar years.  The last occasion substantive orders were made was 31 August 2007, and the parties were directed to dispute management organised through Victoria Legal Aid.  I am advised today that both parties did in fact attend a lengthy management session held under the direction of Mr R. The outcome was unsuccessful though the parties are committed to following up with a further session in approximately six months time.  I encourage that endeavour and on the adjourned hearing on 3 January will likely make an order for that out of court discussion process to be continued.

2. The matter was stood down for some time today and I requested the legal practitioners to endeavour to resolve these interim issues.  Those discussions were unsuccessful though that was perhaps in part because of the absence of the mother from court this day.  The existing orders as to the time the father spends with the child remain largely as ordered on 13 September 2006.  The venue for that time spent with is fixed and the mother is in substantial attendance during those periods.  The matter seemingly has not moved forward from that date, and, in excess of one year thereon all interim matters remain largely incapable of discussion or resolution out of court.

3. I will list this matter on Thursday 3 January at 10.00 a.m. for an interim hearing.  I emphasise that the hearing will be on the papers and for that purpose the parties and the Independent Children's Lawyer, if that is appropriate, are to file an updated application containing orders sought on the basis of the continuing interim outlook.  Both practitioners for the parties have raised the issue of a defended hearing, but I record in these extempore reasons that I have no available date over the next five months or thereabouts, and in any event I have expressed in discussion with the parties that any order is likely to be of an interim or progressive nature given the age of the child, the emotional and parental issues that are not yet resolved, and of course all of the other factors surrounding the residence, lifestyle, future education and emotional upbringing of the child remain unresolved.

4. The father indicated by his initial application filed with the court on 16 March 2006, that he intends to move forward and quickly establish periods of lengthy relationship with the child, and in the time that has passed since the filing of that application, it is apparent that that immediate outcome is somewhat unlikely.  What I specifically require of the father as applicant is to file amended orders with the court that are both meaningful and practical for the child and for his relationship with his daughter at an age appropriate level, having regard to the family consultant's report and the facts in issue before the court.  As to the mother who maintains a very strict and uncompromising approach in the material filed with the court, she needs to obtain advice from her legal practitioner and have a proposal that might meet the developing needs of the child, leaving aside the parental conflict and the inability of these adults to discuss any issue one with the other.

5. Both parties will be required to file an affidavit.  I balance the need to minimise the legal costs in this case with the requirement to have an updated, hopefully accurate and meaningful affidavit dealing with present and not past circumstances for the child.  I carefully prejudge no issue but there is a reality to life moving on and in almost every case as a child becomes more accepting of the parent with whom that child is not then living and the surrounding circumstances and environment of time to be spent is appropriate, then often there is a gradual escalation in time that is determined in the best interests of the child.  I say that to try and give some guidance to the father to be sensible and realistic in his requirements, and to the mother that she must understand that the child may well need the support and guidance of both parents and that might necessitate a greater period of time being spent by her with the father, even on an unsupervised basis.

6. Again, for the benefit of the parties, I emphasise I have no concluded position, but if they fail to exercise parental skills and work through an arrangement themselves then that responsibility is imposed on the court.  I have also been alerted to the current orders in relation to the passport application and the wife's intended travel.  Mr Zemljak has assured the court that in the interim and until 3 January 2008 the wife will not activate the existing passport application that she holds for the child and seek the issue of a passport.  I accept that statement is provided on instructions to the court and I will not make any further injunctive order this day.  I reserve to the Independent Children's Lawyer the right to file any summary of orders sought or other material.  I will structure the orders so that the father files his material by 7 December of this year.  The mother then files all documents by 14 December of this year, and finally by 21 December the Independent Children's Lawyer files that which is regarded to be proper and of assistance to the court and the parties.

7. I encourage some level of discussion before 3 January, particularly if on that day counsel are to be briefed who have not otherwise been in the case and have no realistic understanding of the barriers that the parents wish to put before both the court and most likely the child.  I re‑emphasise I have no concluded view in this matter save that an intractable conflict between the parents seemingly exists and is becoming more and more entrenched by their behaviour.  I will make other interim orders on the adjourned date. 

8. An issue that was raised by Ms Agresta was the transfer of the whole of the proceedings and file to the Federal Magistrates Court where the matter could be more quickly and hopefully cheaply heard and determined.  That is an option which remains before the court for the 3 January hearing, though my concern in this case is that the entrenched parental conflict and refusal to identify proper outcome and discuss any such outcome may simply mean this matter will always be an ongoing disputed contest that is capable of taking more than two days if and when a final defended hearing is ever appropriate.

9. For those very brief reasons and because I cannot hear issues today in the absence of the mother and because this was a mention only date, I have pronounced orders.

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

Associate

22 November 2007