Davidson and Davidson (No. 3)

[2012] FamCA 564

FAMILY COURT OF AUSTRALIA

DAVIDSON & DAVIDSON (NO. 3) [2012] FamCA 564

FAMILY LAW – CHILDREN – Child and parenting matter – Both parties and child have now returned to Australia – Orders made on an interim basis in the best interest of the child – Where he is to live – Time to be spent with his father pending further hearing – Requirement for psychiatric assessment – Ongoing random drug screening – Further case management orders required.

Family Law Act 1975 (Cth)

APPLICANT: Mr Davidson

RESPONDENT: Ms Davidson

INDEPENDENT CHILDREN’S LAWYER: Ms Harris

FILE NUMBER: MLC 4646 of 2012

DATE DELIVERED: 12 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 12 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: The father (in person)

COUNSEL FOR THE RESPONDENT: Mr Salamanca

SOLICITOR FOR THE RESPONDENT: Macpherson & Kelley

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Harris

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

Orders

1. THAT paragraph 13 of the Court Orders pronounced 13 June 2012 (“the earlier orders”) be varied so as to now provide that J Davidson (“the child”) born … June 2009 is now to live with the father as follows:

   (a)       in the week commencing 13 July 2012 and fortnightly thereafter from        4.00 p.m. Friday until 4.00 p.m. Sunday (inclusive);

   (b)in the week commencing 20 July 2012 and fortnightly thereafter from 4.00 p.m. Wednesday to 4.00 p.m. Friday (inclusive).

2. THAT paragraph 14 of the earlier orders be amended so that the father is to collect and return the child punctually to the front gate of the premises at P suburb on all occasions.

3. THAT paragraph 16 of the earlier orders be further amended so that additionally the child is able to live with and spend the night with his father at O suburb.

4. THAT each of the mother and father are restrained from taking or permitting the child to be taken or removed from the state of Victoria pending further order of the court.

5. THAT the independent children’s lawyer is to arrange random drug testing procedures for the father in the months of August and September 2012 only and the father must do all acts and things and cooperate and abide by all reasonable requests and instructions of that lawyer and submit to all proper testing procedures.

6. THAT the results of such random drug testing are to be made available forthwith to the family consultant, Dr. E and the parties.

7. THAT each of the parties are to approach the Family Relationship Centre in Melbourne, or a private counsellor as they may mutually agree upon, and organise, at their joint expense, separation counselling, or such other counselling as to focus upon their present parental circumstances and requirements and to assist them each in providing better for their son James.

8. THAT the husband’s sister, Ms D, be released from the undertakings which she gave to the court on 1 June 2012.

9. THAT the husband’s sister, Ms B, be released from subparagraphs (a), (b), and (c) of her undertakings given to the court on 1 June 2012, but that the undertaking for the payment of $200 per week to the mother for a period of 3 months continue in full force and effect.

10. THAT the extempore reasons for judgment delivered this day be transcribed, placed upon the Court file and be made available to the parties.

11. THAT all extant applications be otherwise adjourned for further case management and directions before Young J at 10.00 a.m. on Friday 14 December 2012.

12. THAT paragraph 10 of the earlier orders be amended by changing the date to 7 December 2012. 

13. THAT liberty be reserved to the father to apply, on proper documentation filed and served upon all the parties, no less that 14 days in advance, if and when he obtains suitable rented accommodation for himself and if he seeks to accommodate the child with him on his nights at that new residence.

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 mother and the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davidson & Davidson (No. 3) 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 returned to Court this day as was provided for in my orders of 13 June 2012.  The husband now appears in person.  The wife remains represented by her same solicitors, but has engaged Mr Salamanca of Counsel.  My appointment of the Independent Children’s Lawyer has been effected and Ms Harris of Counsel appears with her instructor to represent the interests of the child, J, born in June 2009.  At the outset, I record that these are ex tempore reasons given without leaving the bench.  I intend these reasons to be in very short form.  I have had submissions and have read the abundance of further affidavits filed, and it is now quarter to one and I am delivering these ex tempore reasons.

2. At the outset, I indicate that I am acutely aware of the provisions of the Family Law Act1975 (Cth) of and related to the child’s issues, and I am focusing upon his best interests. I am aware of each of the factors within section 60CC (2) and (3), and I have applied them in determining these interim orders. I have focused on that primary requirement, but all of the additional matters, where relevant, are of importance. The Court has had the significant benefit today of receiving an issues and assessment report which I had ordered under section 11F of the Act.

3. Mr N, Family Consultant, has prepared that report dated 11 July 2012, and I accept that report into evidence.  It had been available to all of the parties and I have had submissions upon the report.  I have particularly and carefully read the summary on pages 5 and 6 of that report and the future directions as recommended on page 7.  Throughout the report, which was prepared as a matter of urgency and which is a helpful, comprehensive and carefully prepared report, the Family Consultant has concentrated upon the child and issues of his upbringing and stability, of issues in the behaviour of his parents and how it impacts upon him, and of the primary role that he has been able to ascertain the mother played in so much of the child’s early and formative years and currently.

4. Both Mr Salamanca and Ms Harris have identified various paragraphs within the report, which I have both initially read and then re-read at their invitation, and I am acutely aware of those matters and their significance and how they relate to the ultimate future direction which the Family Consultant asked the Court to consider.  That is contained within the penultimate bullet point at the conclusion, where a modification of the existing interim arrangements is offered up so that the child would be living predominantly with his mother and spending multiple single-day periods or a single overnight period with the father, and that would develop after a month and perhaps extend to that which is now before the Court.

5. I record that Ms Harris, on instructions, argued strongly for that position, and that is a matter that I have carefully evaluated in determining the best interests of the child.  Otherwise, I have a somewhat unique understanding of the background of this case, all of the European issues, and I have delivered previous judgments which are the foundation of my continuing to deal with this matter.  I have received a plethora of affidavits today:  one from the mother, two from the father, and other affidavits from the father’s sisters, who are all in Court and have been wholly supporting their brother and the outcome of what they believe is best for the child.

6. I will not refer individually to those affidavits, but I both read them last night and when the matter was adjourned for half an hour this morning to enable Counsel to read.  I formally gave leave for the father to file his second affidavit today.  I cautioned the parties upon various annexures to affidavits and simply bundling documents together, on the basis that by stapling them to an affidavit gives it some magic admissibility factor; generally, it does not, and I have therefore, with discretion, limited my reading of some of the annexures that are not appropriately before the Court in admissible form.  I will take a much tougher stance in future hearings as to documents simply being stapled to affidavits and presented to the Court.

7. My orders of 13 June structured an arrangement in orders 13, 14, 15 and 16 thereof so that the child lived with his father in each week from 4 pm Friday to 4.00 p.m. Sunday.  Both parents were required to give substantial attendance and comfort to the child when he lived with them, and significantly, when the child was with his father he was required to live at the M suburb premises; that is a very comfortable and appropriate home of one of the husband’s sisters.  I have now various options addressed by counsel and presented by the family consultant.  I intend to make an order which will operate until 14 December of this year.

8. On that day it will be mentioned before me for further case management or directions.  In the meantime, the parties are to confer with an eminent psychiatrist, Dr E.  Those conferences will be held in late October, and hopefully by 14 December, a report on all issues of and concerning the parties, their psychiatric assessment or behaviour will be before the Court.  The parties are also to undergo a full family report with Mr N;  that is provided for in detail in paragraph 9 of my earlier report.

9. It is essential that the outcome of Dr E’s information and report be known and conveyed to Mr N, but certainly, he can commence to prepare his report with the timetable of it being available before 14 December of this year.  Mr N encouraged the parties to actively undergo through Family Relationships Australia some form of counselling as to both separation and as to becoming better and more informed parents.  Certainly, in dealing with the conflict of separation and the pressures that they now face, that is not only an excellent suggestion, it should be taken up by the parties, if necessary at their joint expense.

10. I have carefully weighed Mr N’s report and the strong submissions of Ms Harris against the more extended time the father sought and, I thought, the balanced and well-presented time that the mother would offer.  In particular, I understand the mother’s submissions given by her to Mr N to which Mr Salamanca highlighted my attention, which was either three nights, or otherwise, four nights in fourteen, but without any substantial break of a month or thereabout;  that is, effectively a limitation to engender a new starting basis.  I am not going to order in the terms that Mr N has offered, but having said that, I respect his opinion and I have carefully evaluated that scenario.

11. I am going to amend the existing orders.  I am going to ensure that each of the parents have a whole weekend.  I am going to provide to the father, because I believe it is in the child’s interest, two other nights, being Wednesday and Thursday in the other week.  There is a significant issue about accommodation.  Ideally, both parents want to obtain their own flats or apartments and live there by themselves or with the child when he is with them.  That will have to happen at some stage, and the wife’s evidence is that she is actively pursuing that outcome, and likely has some advantage through her sister in securing hard-to-obtain accommodation subject to payment of rent.

12. I also have various submissions as to where the husband should live when the child is with him.  Currently, paragraph 16 restricts him to the M suburb home of one of his sisters;  I am going to enlarge that paragraph to include an O suburb address as an option, so the father has one or two of his sister’s homes.  I do not discriminate against the T suburb option, but I am merely limiting to two, and I, from reading the affidavits, had a clear preference for O suburb, and that has been endorsed by Mr Salamanca on the mother’s instructions as the other venue along with M suburb.  If the father obtains appropriately leased premises, as will the mother, then in due course it is most likely, subject to negative drug testing and proper behaviour and the best interests of the child, that he would have the child at that venue at a later date and time.

13. It remains somewhat crystal ball gazing as to when he will get that flat, when he can afford the flat, and he clearly has other issues in his life with the child and other financial interests that are beyond the scope of this Court to otherwise address.  I will maintain paragraph 15 of the previous order.  I will require independent random drug testing as organised by the children’s lawyer;  it will only occur in the months of August and September, and the father must comply with the requirements and short notice that he is given to attend and to provide a drug sample.  These orders only work, it must be understood, on short notice so they can’t be engineered.  And non-compliance will be read, particularly if it is persistent, to be indicative of a course of behaviour that is one of non-cooperation.

14. The outcome of the drug testing must be made available to Dr E, to Mr N and to the parties, and ultimately, to the Court.  I do intend to reserve liberty to the father, if and when he obtains his own accommodation, to approach the Court to add that option to the O and M suburb addresses.  I would hope he would not need to approach the Court, but between solicitors or directly with the mother, these issues could be discussed, because the parties will see the advantage in limiting their attendance at Court.  Ultimately, they are the parents;  responsibility lies with them to make decisions, although I truly appreciate the past few months has somewhat ruptured their relationship and the ability to talk and to communicate to each other.

15. Finally, I do want to make an observation that persistent telephone, email, text message and other contact has to be constrained.  It has to occur only when necessary, not to inquire or to be inquisitive, or to seek to inform or put one in a position of knowledge, or to control the other party.  The parents are separated, and they need act as mature separated parents.  As to the undertakings before the Court, I am satisfied on what I have read that the husband’s sister Ms D has fully discharged her obligations, and she will be released formally therefrom.

16. I am satisfied that the sister Ms B has fully discharged the obligations in paragraphs (a) and (b);  I intend to discharge paragraph (c) in the current circumstances and with the mother having available accommodation in Australia.  The structure of that undertaking was in circumstances where she might return to Australia without family, as previous material before the Court, albeit that it turned out to be somewhat inaccurate, indicated that all of her sisters and other relevant persons were not in Australia.  I intend to maintain undertaking (d);  that is, $200 per week.  That is a matter which otherwise can be adjusted between the sister Ms B and the husband.

17. It is a matter which the mother knows from a question in the Court might be seen to be income to be declared for Centrelink purposes, and likely there will be some inquiry in due course made as to whether there has been a proper declaration.  How that financially inputs upon the Centrelink payment sum to the mother, I do not speculate, but there might be able to be some practical, commercial discussion to discharge the sister Ms B from that obligation, but I leave that to the parties out of Court.

18. They are succinct reasons;  they are given ex tempore.  I re-emphasise that I have had the unique advantage of observing the parties.  I know the history of this case, and I have read the affidavits and listened carefully to counsel.  I have heard the matter on the papers and on submissions, and my reasons are concise but, I hope, appropriately blunt but accurate.  I will have these reasons transcribed, placed upon the court file and made available to all parties.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 12 July 2012.

Associate: 

Date: