Department of Community Services and Medley & Ors

[2013] FamCA 1064

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & MEDLEY AND ORS [2013] FamCA 1064

FAMILY LAW – PARENTING – Procedural Orders – Mother’s time with child – Where children living with paternal grandparents – Where respondent mother made oral application to spend supervised time with the children – Where mother’s application was consistent with applicant’s proposal for mother’s time with children – Where mother appears unable to make significant changes – Where long term supervision arrangements would create practical difficulties – Where interim order for the mother to spend time with children might cause instability for the children – Where there is an option for no time with mother – Mother’s application dismissed

APPLICANT: Director General Department of Community Services

1^st RESPONDENT: Ms Medley

2nd RESPONDENT:	Mr Forlini
3rd RESPONDENTS:	Mr A & Ms B Forlini
INDEPENDENT CHILDREN’S LAWYER:	Independent Children’s Lawyer

FILE NUMBER: WOC 342 of 2009

DATE DELIVERED: 20 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 20 December 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Solicitors Office

1^ST RESPONDENT: In Person

2^ND RESPONDENT: In Person

3^RD RESPONDENTS: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Lukes Law

Orders

IT IS ORDERED

1. That the matter is referred to the List Clerk for the allocation of a hearing date at the earliest possible time with an estimate of four days.

2. That the mother and the father and the paternal grandmother are each to file and serve one affidavit of the evidence that they seek to rely on at the hearing by 31 January 2014.

3. That the matter be listed for a readiness mention before the Honourable Justice Rees at 9.30 am on Monday 3 February 2014.

4. That fourteen days prior to the hearing, the Director-General to file and serve a paginated bundle of documents in suitable form for tender, representing the documents he seeks to tender during the proceedings.

5. That seven days prior to the hearing, each party is to file a Case Outline document including a Minute of Order setting out the orders sought on a final basis.

IT IS NOTED

1. That the witnesses required for hearing to be the witnesses listed by the independent children’s lawyer and in addition Kayla Medley the mother’s niece.

2. That the matters set out in a document entitled “Areas of Agreement and Disagreement for Hearing” prepared by the Independent Children’s Lawyer are noted.

3. That leave be given to the parties, with the exception of the Director-General who intends to appear in person, to appear by telephone on 3 February 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Community Services & Medley and Ors 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 SYDNEY

FILE NUMBER: WOC 342 of 2009

DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

Ms Medley

1^st Respondent

And

Mr Forlini

2^nd Respondent

And

Mr A & Ms B Forlini

3^rd Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Before the Court are proceedings in relation to: Ms Medley (“the mother”); Mr Forlini (“the father”); Mr A and Ms B Forlini (“the paternal grandparents”); and C born in 2002 and D born in 2004 (“the children”).

2. The matter is listed today for mention for the purpose of setting the matter down for hearing. In the course of the mention, the mother has made an oral application for an order that she spend time with the children, at least in accordance with the Director-General’s ultimate proposal for very limited time supervised by a professional agency. 

3. The Director-General and the father consent to that application but the paternal grandparents do not. The paternal grandparents have briefly explained their attitude and their reasons. They are reluctant to continue their present level of care for the children if the children have contact with their mother.

4. I note that, in the family report, the family reporter, Ms E, says this:

   Consideration needs to be given to the potential impact of regular supervised contact by the children with their mother and whether this would destabilise their home situation.

   She further says:

   The children are stating that they wish to spend time with their mother but, given that [Ms Medley] appears unlikely to be able to make significant changes and that there are practical difficulties to do with long-term supervision, there would be difficulties involved in time with their mother.

5. In circumstances where one of the options which is available to the Trial Judge is that the children would have no time at all with their mother, I do not consider it appropriate to make an interim order which might destabilise the children, and therefore I refuse the application made by the mother for interim time with the children.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 December 2013.

Associate: 

Date:  20 December 2013