Denfert and Avron (No. 2)

[2008] FamCA 1103

FAMILY COURT OF AUSTRALIA

DENFERT & AVRON (NO. 2) [2008] FamCA 1103

FAMILY LAW  -  CHILDREN  -  Magellan  -  non-compliance with order requiring application to contact service

Family Law Act 1975 (Cth)
FATHER:	Mr Denfert

MOTHER: Ms Avron

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7099 of 2008

DATE DELIVERED: 11 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 11 December 2008

REPRESENTATION

SOLICITOR FOR THE FATHER: Alavilla Vessali

THE MOTHER: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms Williams

THE INDEPENDENT

CHILDREN'S LAWYER:

Maria Barbayannis & Co.

Orders

1. That all previous orders relating to the time the child of the marriage … born … September, 1998 spend with the father be suspended until further order. 

2. That until further order the father spend time with the child :

   (a)from 10:00 am. until 5:00 pm. on each Saturday, commencing on Saturday 20 December, 2008;  and

   (b)at such other times as are agreed between the parties. 

3. That the time the child spends with the father pursuant to these orders be supervised by the father’s wife, Mrs Denfert.

4. That changeovers occur outside the C Police Station as follows :

   (a)the mother or her nominee deliver the child to the C Police Station at the commencement of a period of time with the father;

   (b)Mrs Denfert (the supervisor) and, if desired, the father collect the child from the C Police Station at the commencement of a period of time with the father;

   (c)Mrs Denfert and, if desired, the father deliver the child to the C Police Station at the conclusion of a period of time with the father;  and

   (d)the mother or her nominee collect the child from the C Police Station at the conclusion of a period of time with the father.

5. That until further order, and with his consent, the father be and is restrained from attending at any premises in which the mother and the child live. 

6. That the further hearing of all extant applications be adjourned to 23 January, 2009 at 10:00 am. 

7. That until the mother files a Notice of Address for Service, her address for service be that provided by her former solicitor as the mother’s last known address in the Notice of Ceasing to Act filed on 2 December, 2008. 

8. That the mother produce the child at the childminding room on the fifth floor of the Commonwealth Law Courts building, 305 William Street, Melbourne by 9:45 am. on 23 January, 2009 and she not thereafter be removed from the childminding room, save pursuant to court order. 

9. That the mother attend the court on the adjourned date of 23 January, 2009 with (if represented) her legal representative. 

10. That there be liberty to apply on short notice to the associate to the Honourable Justice Brown or, if she is unavailable, the Magellan registrar. 

11. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

12. That the reasons for judgment this day be transcribed and copies made available to the parties.

13. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 7099 of 2008

MR DENFERT

Father

And

MS AVRON

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This case was before me on 21 November 2008, in the Magellan list.  The background is set out, briefly, in reasons for judgment delivered on 21 November 2008 and I will not repeat it.  

2. At that time the court determined that the father should have contact with his daughter, who is 10.  The time he spent with her was fixed from 10:00 am. to 5:00 pm. on either a Saturday or a Sunday in each weekend.  Alternative days were noted, as the orders provided for changeovers to be at GordonCare or another contact service nominated by the independent children's lawyer, and it was left in the hands of the contact service to determine whether the changeover facility would be available on a Saturday or a Sunday. 

3. Contact was to start on the first weekend after advice from a contact service that it could provide the facility.  A family report was to be prepared;  that process would commence after the father had spent four periods of time with the child, pursuant to the orders. 

4. I was concerned that the mother might not make application to use a contact service for changeovers as an earlier order requiring her to make an application was not complied with.  For that reason I ordered that if the mother did not comply with the order, and apply to the relevant contact services within 72 hours of a request, the matter be re-listed before me. 

5. The mother was represented at that time. This is a Magellan case, so it is subject to the agreement between the court and the Commonwealth, through Victoria Legal Aid.  Parties are offered legal aid, subject to the means and merits test.

6. The affidavit of Ms Altavilla, the father's solicitor, sets out what has occurred, or, perhaps more importantly, what has not occurred, since the orders were made on 21 November.  The father has made applications pursuant to those orders, the mother has not. 

7. The mother has not appeared today.  Her solicitors filed a notice of ceasing to act on 2 December, which was received by the father's solicitors on 3 December, 2008.  That provided an address for the mother in C. By Express Post, advice was given to the mother on 9 December 2008 of today's hearing.  The mother has been called three times and has not appeared. 

8. Before me is evidence that Ms B, a member of Victoria Police, working with the SOCAU group, contacted the father on or about 3 December, 2008 to inquire if he knew how to contact the mother, or if she had moved.  She said she wanted to interview the mother but the mobile phone and the landline provided by the mother had both been disconnected.  Initially, Ms. B thought the mother had moved from her C address but it transpired she was looking at the wrong unit;  the mother’s unit appeared to be occupied but police had been unable to contact her. 

9. The father’s evidence was of not having that address but, with his consent, I will order that, until further order, the father not attend at premises where the mother and the child live. 

10. I am concerned that the father's time with the child has not recommenced, as ordered.  It was the decision of the court that she should be spending time with him, and that was to commence as soon as possible.  Changeovers were to be at a contact centre to minimise tension between the parties and protect the child from that tension, but the father’s contact with the child was to be away from the contact centre, and supervised by his present wife, who signed an undertaking and appeared before me on 21 November. 

11. I do propose to vary the order to provide that changeovers occur at the C Police Station;  that means outside the C Police Station.  The contact will be on a Saturday from 10:00 am. to 5:00 pm. supervised by the father’s wife.  I will adjourn all applications to 10:00 am. on 23 January, 2009 and require the mother to produce the child at the childminding room on the fifth floor of the Melbourne registry by 9:45 am. on that day.

12. I propose to require the mother’s attendance on the adjourned date.  If the child is not provided for contact on 20 December, he and the ICL may need to make further inquiries or make application for a location order. 

I certify that the preceding
12 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.