Devlin and Barta

[2007] FamCA 238

FAMILY COURT OF AUSTRALIA

DEVLIN & BARTA [2007] FamCA 238

FAMILY LAW - CHILDREN – Less adversarial trial hearing - Matter advanced to the next phase pending report from a Family Consultant.

APPLICANT: Mr Devlin

RESPONDENT: Ms Barta

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2692 of 2003

DATE DELIVERED: 1 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 1 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Mort

SOLICITOR FOR THE RESPONDENT: Berger Kordos

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Combes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Agricola Wunderlich & Associates

Orders

1. That all extant applications be adjourned for further hearing at 10.00am on 30 March 2007.

2. That until further order, the father do spend time with the son born in March 2001 and daughter born in August 2002 commencing at 4.00 pm Friday, 2 February 2007 until 5.00 pm on Sunday, 4 February 2007 and on each alternate weekend thereafter.

IT IS DIRECTED

1. That the ex tempore Judgment delivered this day be transcribed, placed on the court file and made available to the parties.

IT IS FURTHER DIRECTED

1. That preparation of the orders be expedited.

IT IS CERTIFIED

(5) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2692  of 2003

Mr Devlin

Applicant

And

Ms Barta

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me pursuant to LAT procedures.  Mr Tait announced his appearance for the father but subject to a qualification.  Mr Mort continues to appear for the respondent mother and Mr Combes for the Independent Children's Lawyer.

2. Mr Tait sought leave to withdraw from the proceedings and following a discussion leave was granted.  The father then took his place at the Bar table.  I explained to the father the importance of having legal representation in a matter such as this in order to provide professional objectivity to issues between himself and the mother.  He readily understood that, and announced that he has already had discussions with a Mr P of P. 

3. I discussed that issue with Mr Mort having been informed by the father that the mother had earlier consulted that firm, and particularly their Glenroy office for advice.  The father informed me, that as he understood it, Mr P had never met with nor advised the mother and furthermore that the firm of P, as it was then constituted, had disbanded and that Mr P was now practising on his own account.  I discussed the issue with Mr Mort who sought instructions from the mother. 

4. Following our discussion, I indicated that I proposed to permit Mr P to appear for the father, and that he should file a Notice of Address for Service.  I have left open the issue of whether or not there is any potential conflict of interest for further discussions should that be necessary.  However, as matters presently stand, it is understood that Mr P will file the required Notice of Address for Service and I will await further developments, if any.

5. Mr Mort helpfully informed me that the parties are to confer with Mr S on 7 February 2007.  The father agreed with this and clearly both parties are going to be advantaged by that meeting, and I will be assisted with his report.  Mr Mort informed me that contact had been taking place and the children's time spent with the father had been "progressing well", to use his words.  He said there were no issues over the question of changeover, however, from the father's perspective there was some disagreement by him with that submission.

6. Mr Mort informed me that the mother will be attending an appointment next week with a family support centre who will ultimately undertake the changeover procedure.  That is a good thing and I had hoped actually that the meeting with the family support centre may have taken place a little earlier.  Mr Mort said the mother proposed the father have contact, until such time as the matter returns to me, from 11 am Saturday to 6 pm Sunday.

7. Mr Mort further informed me that following my orders of 14 December 2006, and the children living with their mother, that the father had “not been cooperating” with Centrelink.  I might indicate that this is not a submission advanced by Mr Mort in a critical nature of the father, but just instructions he received as a matter of fact, so it is said.  Mr Mort then informed me that as a result of the mother being unable to receive the consequent benefits, she had been living on “food vouchers”.

8. The father addressed me, and I again made it clear to him that anything he said from the Bar table would be regarded as part of his evidence.  He understood that.  As a result of that discussion he indicated to me that he would like to spend time with the children from Friday 4 pm to Sunday 5 pm.  He explained the distance between H and B which he undertook to collect and return the children.  He said that the children were “reserved” about him, but that the contact periods had been going, "reasonably well”.

9. He said that the children had addressed him in “an offensive” term, however, I rather suspect that the father has and is wisely ignoring that.  He said that he feels he is “getting on well” with the children.  There was nothing to therefore indicate to me either from the evidence of the father and from the submissions of Mr Mort, that the contact should not continue in a manner that I will shortly order.

10. The father said to the court that without the support of the B Police he would not have had the children and offered to "commend the police" for their assistance.  He maintained that there have been changeover difficulties.  However, being forward looking, it is my expectation that with the mother meeting with the family support centre next week, that Centre will facilitate changeover in a professional and monitored way.

11. Insofar as the Centrelink issue is concerned, the father said to me that he had informed Centrelink both orally and in writing of the current position and told them that the order was in force until January 2007.  I have indicated that it would be my preference for the Independent Children's Lawyer to contact Centrelink and advise them of the various orders made, when they are made. 

12. Mr Combes informed me that the Independent Children's Lawyer had made a recommendation that between now and the return date of the procedures before me, the father have contact with the children from Friday, 2 February 2007 at 4 pm until 6 pm Sunday, 4 February 2007 and in the alternate week from 11 am Saturday, 17 February until 6 pm on 18 February.  So it would go on in a “leapfrogging”, to use my term, arrangement.

13. With professional fairness, Mr Combes indicated to me that that proposal from the Independent Children's Lawyer was “basically a compromise” between the father's stated position and that of the mother.  Having given this matter my careful consideration on the brief submissions advanced and the fact that I am satisfied that it would not be contrary to the welfare of the children, it seems to me that an appropriate arrangement between now and the return date before me (which will be on 30 March 2007) that the father spend time with the two children from Friday at 4 pm on 2 February 2007 until 5 pm Sunday 4 February 2007 and each alternate weekend thereafter.

14. There is only one final addendum I need make.  The court orders provide that there be telephone contact between the father and the children.  The father has informed me, and it is part of his evidence, that he has not spoken to the children on the telephone.  He is anxious to do this, however, and is prepared to provide a mobile phone.  He feels aggrieved that there is, to use his words, "no positive input from the current parent".  There is not much I am going to do about that at the moment save to say that that is clearly going to be an issue for discussion between the parties and Mr S.

15. I wish to emphasise however, that orders of the court are to be obeyed.  Paragraph 2(e) of the Minute of Consent Orders made 14 December 2006 provide that there be telephone contact between the father and the children between 5 pm and 5.30 pm each Wednesday with the father to telephone the children on the mother's mobile telephone and save in emergencies, the father is not to telephone the mother at other times.  That order was made by consent, and thus their agreement became an order of the court.  Orders of this court are to be obeyed.

16. I thank the parties for their attendance this day and anticipate that there will be a report prepared by Mr S which will be made available and distributed to the parties prior to the next hearing which will be on 30 March 2007. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date: 22 March 2007.