Davidson and Davidson (No. 2)

[2012] FamCA 462

FAMILY COURT OF AUSTRALIA

DAVIDSON & DAVIDSON (NO. 2) [2012] FamCA 462

FAMILY LAW – CHILDREN – Return of young child to Australia – Both mother and father have returned from Europe to Australia – No previous orders – Mother having issued Hague Convention application in Poland and other children’s proceedings – Best interests of child and security of his accommodation and location in Australia – Interim arrangements pending further hearing – Appointment of Independent Children’s Lawyer – Appointment of family consultant to prepare s11F report and thereafter s62(G) report – Psychiatric examination of parties – Appropriate consideration of interim orders for parental control, spend time and supervision.

Family Law Act 1975 (Cth)

APPLICANT: Mr Davidson

RESPONDENT: Ms Davidson

FILE NUMBER: MLC 4646 of 2012

DATE DELIVERED: 13 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 13 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tulloch

SOLICITOR FOR THE APPLICANT: Macpherson & Kelley

COUNSEL FOR THE RESPONDENT: Ms O’Connell

SOLICITOR FOR THE RESPONDENT: Carew Counsel Pty Ltd

Orders

IT IS ORDERED:

1. THAT all extant applications be adjourned for further case management and any interim hearing before Young J at 10.00 a.m. on 12 July 2012.

2. THAT leave be granted to the solicitors for the mother to make, file and serve this day the Amended Response and her further affidavit.

3. THAT leave be granted to the solicitors for the father this day to make, file and serve the Amended Application and his further affidavit.

4. THAT the orders sought by the mother in paragraph 1 of her interim orders sought and paragraph 1 of her final orders sought in her Amended Response filed this day be struck out.

5. THAT pursuant to section 68L(2) of the Family Law Act 1975 the child J Davidson born … June 2009 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange as a matter of urgency such separate representation.

6. THAT forthwith upon appointment by Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service. 

7. 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.

8. THAT pursuant to section 11F of the Family Law Act 1975 a Family Consultant be appointed by the Director, Child Dispute Services, to forthwith confer with the mother and father, and other adults as are relevant, and prepare an initial assessment and report for the Court in relation to the child J Davidson (“the child”) born 24 June 2009, such report to be available prior to the adjourned hearing date of 12 July 2012.

9. THAT pursuant to section 62G(2) of the Family Law Act 1975 the same Family Consultant who is to prepare the s 11F report prepare a full and updated Family Report on all matters of and concerning the child, his welfare, upbringing and best interests and in particular have regard to:

   (a)the residence and proposed living arrangements for the child;

   (b)the relationship which each of the parents have with each other and their level of communication;

   (c)any future proposed relocation of the child from Australia to any overseas country;

   (d)his health, welfare and best interests including an investigation of alleged alcohol and drug abuse;

   (e)alleged family violence;

   (f)the proposed accommodation and current living arrangements and the assistance offered by family including aunts and other relatives;

   (g)any other matter which in the opinion of the Family Consultant is a matter of importance including the physical and mental state of health and wellbeing of each of the parents.

10. THAT it is requested that the full Family Report be prepared as soon as practicable and to be available to the Court on or before 1 October 2012.

11. THAT for the purposes of the preparation of that Family Report the Family Consultant confer with the parties and any other relevant adults as proposed by them and to have access to any psychiatric report prepared by Dr E.

12. THAT each of the parties are to instruct their solicitors to make the earliest available appointment with Dr E, Psychiatrist, for the purposes of the preparation of a psychiatric assessment and report of each of them, such report to be prepared at the joint cost of the parties.

13. THAT until further order the child is to live with his father in each week from 4.00 p.m. Friday until 4.00 p.m. Sunday and at all other times is to live with his mother.

14. THAT for the purposes of changeover the mother is to facilitate the proper delivery of the child punctually to his father at the front gate of the premises at M suburb and for the return trip at 4.00 p.m. Sunday, the father is to facilitate the punctual delivery of the child to the front gate of the property at P suburb.

15. THAT both the mother and father are required to give substantial attendance and comfort to the child and be with him during the periods when he is living with them.

16. THAT at all times when the child is living with his father he must sleep each night at the M suburb property and he is not permitted to sleep or spend overnight at any other location.

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

18. THAT the expired Australian passport of the child (No. …97) be lodged with the Registrar, Family Court, Melbourne Registry for safe keeping purposes (it being noted that the passport was delivered up by the mother during the court hearing to court officials) and further that the recently issued Australian passport for the child (No. …00) be held in safe custody by the Registry of this Court pending further order (it being noted that it was delivered to the Registry on 12 June 2012).

19. THAT any further affidavits to be relied upon by the parties are to be filed and served upon the other party and the Independent Children’s Lawyer on or before 12.00 noon Tuesday 10 July 2012.

20. THAT liberty be reserved to either party to apply upon short notice on proper documentation filed and served.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the parties.

IT IS NOTED

A.THAT on the child’s birthday the father through his Counsel has agreed to make the child available for collection at 3.00 p.m., and not 4.00 p.m. on that day.

BY THE COURT

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davidson & Davidson (No. 2) 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 4646 of 2012

Mr Davidson

Applicant

And

Ms Davidson

Respondent

REASONS FOR JUDGMENT

1. The matter of Davidson returns to Court this day.  Ms Tulloch of Counsel appeared for the father and Ms O’Connell of Counsel for the mother.  The matter was listed at 2.15.  The first matter addressed was the filing of documents with the court.  This issue led to some level of legal argument and submissions.  Ultimately, and very much as a matter of practicality, I elected to abridged times to enable the filing by both parties of their respective updated applications and an affidavit in support.

2. First, I granted leave to the mother’s solicitors to file their amended response and an affidavit of the mother in support.  That had been attempted to be filed by the eFiling process but, for reasons unknown to me, the documents were directed to be brought to Court.  I have therefore given leave for the filing of each of those documents.

3. I record that in the mother’s application she first sought an order to stay proceedings pending the determination of the Hague Convention application.  The background to that application has been well traversed in my earlier reasons for judgement given on an ex tempore basis last week and in very different circumstances.  The scenario now is that the child, J, born in June 2009 and each of the mother and father are in Australia.  There are current orders which were extant until 4.00 pm this day for the child to spend the majority of the time until today with his mother and that has occurred.

4. The jurisdiction of the Hague proceedings issued by the mother in Poland are somewhat uncertain, given that the child has been located, is currently with the mother and she is in this country and in the jurisdiction of this Court.  If the Hague Convention proceedings were to carry any weight, then the country where the proceedings were issued, Poland, would, of necessity, give a letter of instructions to the Australian State Central Authority who would act on her behalf in place of the solicitor for the mother.  That has not happened and, after raising the matter with counsel for the mother, the very sensible outcome was offered to the Court to strike out paragraph 1 of the mother’s document filed this day, both as to interim and as to final orders.

5. Accordingly, I have already said and I will formally embrace in an order, paragraph 1 of the orders sought by the mother in each of those interim and final applications be struck out.  That therefore leaves the application before the court for the mother to have sole parental responsibility for the child, for him to live with her and for the father to have no specified time spent with the child pending a psychiatric assessment to be paid for by the father, random drug screening tests and a further and better assessment of the evidence by the Court. 

6. Likewise, by leave, the father filed an amended initiating application.  He had filed first in time and is strictly the applicant in these proceedings.  His orders are for there to be equal shared parental responsibility for the child, for the child to live with him seven nights in a fortnight and otherwise with the mother and for there to be orders made as to changeover, injunctive orders, a family report and for a psychiatric examination of both parties by Dr E, a well known and highly qualified psychiatrist.

7. The leave has been appropriately given to the father’s solicitors to file those documents and thus each of them are before the Court this day.  I record and it is proper to highlight that the father’s documents were produced in Court and thus both the legal practitioners for the mother and the mother and her various supporters in Court have not yet had an opportunity to read, consider or, more particularly, for counsel to get instructions upon matters raised by the father.

8. The hearing this afternoon was by way of submissions and on the papers.  It has occupied approximately two hours, ten minutes, and this ex tempore judgment, in short form, is being delivered at approximately 4.30 pm.

9. I had previously made an order for the parties to attend Court this day and for there to be confidential counselling.  That has occurred with the family consultant Ms H.  As it was confidential, the Court has not got a report, save that a memorandum is placed on the Court file identifying that there is no agreement between the parties, that there are issues in dispute, including the country of residence, and with which parent the child should live and/or spend time with what other parent. 

10. It was also recorded in that document that a family report should be prepared and that there should be a psychiatric assessment of the father.  It was also recommended that an Independent Children’s Lawyer be appointed.  I do highlight my understanding that the recommendation from the consultant was for a psychiatric report of the father only and not of the mother and that was a point substantially enforced by Ms O’Connell in her submissions.

11. With that limited background, I turn to the particular issues before the Court and they are many. I have had the assistance of the Director Child Dispute Services, in Court. She has offered a facility for an interim report to be prepared by another family consultant pursuant to section 11F of the Family Law Act 1975 (Cth). I will avail the Court of that opportunity and I intend to order an initial issues and assessment report to be prepared and to be available to the parties and the Court prior to 12 July. I will relist this matter before me at 10 am on 12 July 2012 but for limited purposes only. It is not for the purposes of any defended hearing. It is for the purposes of assessing the contents of the report and, more particular, having an understanding how the orders that I intend to make in the child’s best interests today have been implemented or what other matters have arisen.

12. I am alert to the background and potential family hostility in this matter and the difficulty that the parents might have in accepting any interim orders and in putting the child’s welfare first.  I therefore am conscious to monitor the orders that are made today on an urgent basis.  I will have that same consultant prepare a 62G full family report as soon as possible and, to some extent, the timetable of that report must be linked to the preparation of a psychiatric report of the both parties, which I will order and which is to be undertaken at the joint expense of the parties by Dr E.

13. I am told that report can be commenced by Dr E in September and that is the best timetable that is able to be arranged.  I conclude it is a matter of importance, given that it is sought by both parties, although there is a conflict as to whether or not the mother should be involved as a subject matter of the report.  I will require the report to be prepared of both parents and thus both of them can have an input by way of instructions to Dr E and a far more balanced and informative report is likely to therefore follow.

14. The immediate issue - again, of some urgency - is to determine the interim arrangements for the child.  He is currently with his mother and after the return to this country, the father has not seen the child for the last few days.  That is how it should have been, given previous events.  What I intend to do is to pronounce orders that will operate between now and 12 July 2012, when all matters again are open for consideration and further order.  I will not make any sole parenting order or other parental responsibility order this day.  I do so without, in any way, impacting upon or negating the order that the mother seeks I simply will not determine that matter on the papers and thus these orders are wholly without prejudice to the ultimate orders that are sought.

15. I need apply the provisions of the Family Law Act 1975 (Cth). The primary focus is upon the wellbeing of the child on an interim basis. I need consider, as I have carefully reflected upon, each of the relevant section 60CC factors, in particular, all of the issues of the physical safety and protection of the child, as Ms O’Connell has continuously highlighted, and rightly so. I must, however, have also a reflection upon the child maintaining a meaningful relationship with both parents and all of their practical family and extended circumstances. I have considered the evidence under the requirements of Part VII of the Act, focused upon the best interests of the child and pronounced interim orders pending the further report from the family consultant that I have concluded are appropriate to the child’s circumstances and his welfare and of course his security within Melbourne and with him not to be removed to any other country.

16. There is not the time to investigate the physical arrangements for the child, who predominantly has been with the mother over recent days at the property in P suburb.  I am accepting that that provides a proper level of accommodation for the mother and child.  Likewise, the father’s proposal, on a short term basis, is that he resides with his sister, Ms Y, and her husband and their two children, who are aged 16 years and 19 years at the address in M suburb.  I am told that there is a substantial home on that property where the family live and a studio out back where the father and/or the child, for times that he spends with him, will reside.

17. If, in due course, there is to be a physical investigation of the suitability of each of those properties, that can and will be undertaken by the parties but they are not matters that I currently have in evidence or which I deem necessary to further concern myself.

18. I approach this case on the basis that the mother has a good level of support from her sister and the sister’s partner.  Likewise, the father must have a good level of support from his extended family and his sister, Ms Y, is in Court with him today.  I am told, through counsel, that she works Monday to Friday full time in a responsible job of which I do not have particulars but in the city.  I have a background that the mother is currently unemployed and will be primarily, over the next few weeks, looking after the child.  The father, I think, also is unemployed and is a bankrupt.  Again, I do not enter further into any financial matters and there are any number of issues of and related to the costs of these proceedings, where neither of them are legally aided and/or any future property settlement and how and when and if that will be presented before the Court.  I say that, given the complication of the husband’s bankruptcy and the identification of assets in whatever trust exists and if and when controlled by the mother and likely those matters are beyond her current knowledge.  I record these issues in the broadest of terms because during the proceedings today the father gave instructions to his Counsel or otherwise made mention from the rear of the Court of this trust and the wife’s control of or involvement therewith but otherwise these matters are wholly unknown to the Court.

19. Returning to the child, the very strong submissions of Ms O’Connell, which were often repeated to the Court, was that there should be no time spent or alternatively and reluctantly, if ever there should be any such time, it should be supervised by an outside agency at the paid expense of the father.  Very much the thrust of her submissions were that no trust or respect should be afforded the extended family and, in particular, his sisters.  Whether that approach merely highlights further difficulties and inflames situations, I will not comment upon at this time.

20. The father’s position is equally stark.  He has sought seven nights in fourteen with the child.  I have already commented to his counsel that is excessive.  What the child needs is a primary home, a level of stability and certainty, but he must be able to spend some level of time on a weekly basis with both parents.  Clearly, there will be issues, including changeover.  He must be transported at all times in a car with a proper child restraint seat.  The parents must proffer some level of respect to each other on changeover, if indeed they are to be there, or otherwise the mother’s sister and her partner or the husband’s sisters or any of them or extended family must likewise cooperate.  I cannot finetune changeover at this time, as I would like to, and there will need to be some level of cooperation and practicality.  Therefore, there needs to be some level of maturity from the adults in the child’s life and I trust that is not too much to ask on his behalf.

21. There are some matters which are likely to be agreed or which are in the child’s interests.  I will make an order for the appointment of an independent children’s lawyer.  I did harbour some little concern as to the effectiveness of that appointment, given the child’s age and given the conflict on factual matters that are likely to flow to this court.  However, given potential overseas relocation, given potentially a sole parent order being sought and made, then it is appropriate to have a legal office representing the child at no expense to the parents.

1. There are, in the father’s application, various injunctions sought as to restraining orders, non-denigration and the like and, clearly, both parties need understand that they will have a lifetime involvement with each other, at least until the child is 18, in terms of his upbringing and therefore he deserves parents who conduct themselves appropriately.  I say that with due reflection on past events, in this case, and those matters might be aired at another date.

2. The mother also sought orders that the father submit to random drug screening tests at the request of her solicitor.  Perhaps, somewhat optimistically drafted but I will make no orders but I will leave that application alive with the children’s lawyer to further consider, if and when appropriate.

3. There remains, between now and 12 July, a determination of what appropriate time the father should have on a weekly or fortnightly basis with his son and, conversely, the substantial time that the mother should have with the child.  It is somewhat complicated by the necessary regime of changeover but I leave that exclusively to the parents to show a level of common sense and communication upon, subject to the matters that I earlier outlined.

4. What I am going to order will have a level of rigidity about it until 12 July.  I want to emphasise that these orders are only to operate until 12 July 2012 and they may then be extended or reduced or modified as today’s.  By then, I will have a further affidavit of other relevant assisting adults and better understand the competing circumstances within each household and other availabilities.

ORDERS DELIVERED

1. That gives the father two nights in a week, four nights in a fortnight.  I emphasise that I will be open to any persuasion that that is either too much or too little on the adjourned hearing date.  I will require the mother to transport the child to the father on Friday and it must be punctual and it must be 4 o’clock, and the father to transport or arrange to transport the child to the mother’s residence on Sunday at 4 o’clock and it must be punctual.  The same rules apply to both.

2. I will not, at this stage, make any other interim injunctions.  The drug screening test remains alive for a children’s lawyer to participate.  I did reflect upon having a non-alcohol requirement upon the father for those days but, at this stage, that’s his responsibility and common sense must apply and his sister must have a fair apprehension of the behaviour of her brother in those circumstances as well.

3. I will not make the other injunctive orders sought in paragraph 5 of the father’s application at this stage because the child is of such a young age that he would not be aware of any of those issues but, perhaps, on the adjourned hearing, some of those injunctive orders should be made.  If there is but the slightest episode of either parent abusing or threatening or commenting adversely to the other or to any member of the extended families, I will make those orders but, again, I’m trying today just to make orders that are somewhat refined in the urgent nature of the application.

4. The child, as I understand it, is with the mother’s sister today, so today being Wednesday, the child will stay there until Friday with the mother and it’s only at 4 o’clock on Friday that the child will be driven by the mother or others with the mother to the front gate of the M suburb property.

I certify that the preceding Twenty Nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 13 June 2012.

Associate: 

Date: