Diderot and Diderot

[2008] FamCA 1051

FAMILY COURT OF AUSTRALIA

DIDEROT & DIDEROT [2008] FamCA 1051

FAMILY LAW  -  CHILDREN  -  Magellan  -  interim parenting orders

Family Law Act 1975 (Cth)

HUSBAND: Mr Diderot

WIFE: Ms Diderot

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6701 of 2008

DATE DELIVERED: 21 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 21 November, 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms. Tarrant

SOLICITOR FOR THE HUSBAND: Cahill & Rowe Family Law

COUNSEL FOR THE WIFE: Mr. Hutchins

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

Orders

1. That until further order the husband spend time with the children of the marriage B born … December, 2001 and J born … August, 2005 as follows :

   (a)from 10:00 am. until 4:00 pm. on each Sunday between 23 November, 2008 and 21 December, 2008 (inclusive);

   (b)from 3:00 pm. on Christmas Day 2008 until 5:00 pm. on Boxing Day 2008;

   (c)from 10:00 am. on 3 January, 2009 until 5:00 pm. on 4 January, 2009 and each alternate weekend thereafter;  and

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

2. That the husband’s mother be in substantial attendance during periods the children spend with the husband pursuant to paragraphs (1)(b) to (d) hereof. 

3. That the independent children’s lawyer provide the Department of Human Services with a copy of the affidavit of Dr. N, sworn 30 October, 2008. 

4. That all extant applications be otherwise adjourned to a trial notice listing on 11 February, 2009 at 11:00 am. and there be liberty to apply for an earlier listing to the Magellan registrar. 

5. That the husband and wife each attend a parenting after separation course nominated by the independent children’s lawyer and provide the independent children’s lawyer and the other party’s solicitors with a copy of the certificate of completion.

IT IS FURTHER ORDERED BY CONSENT

1. That the wife do all things necessary to enable the husband to speak to and obtain information from any and all professionals involved with the children or either of them, including but not limited to medical practitioners, teachers and counsellors. 

2. That the wife notify the husband not less than seven days prior to any appointment the children may have with any professional involved with the children or either of them. 

IT IS DIRECTED

1. 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.

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

IT IS CERTIFIED

1. 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.

AND THE COURT NOTES

That counsel for the husband advised that the husband will not attend changeovers and the children will be collected by his parents, or one of them. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6701 of 2008

MR DIDEROT

Husband

And

MS DIDEROT

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties commenced a relationship in May 1999.  They married in October 2001 and divorced in September 2006 having separated in early 2004.  They have two children.  B is almost seven and J recently turned four.

2. The children have lived with their mother since the separation.  Final parenting orders were made on 6 March 2006.  They conferred shared parental responsibility on the parents and provided for the father to spend time with the children, pursuant to a regime which involved three weekends in January, March, May, July, September and November, and two weekends in the other months.  The time was, essentially, from Friday through to Sunday evening, with some variations on particular weekends.  The structure of the orders related, in part at least, to the fact that the parties live some two and a half to three hours apart, and the children have to travel between S and G. 

3. The proceedings which are before me commenced on 24 July 2008 in the Federal Magistrates' Court.  At that time the mother sought the discharge of those orders of 6 March, 2006, that the children live with her, and that they spend time and communicate with the father as determined by the court.

4. The mother alleged that in the course of 2007 she became aware of a number of issues which caused her concern about the children’s supervision and the circumstances in which the children spent time with the father.  By the middle of 2007, B was refusing to go to his father's place, and so was J.  The mother deposed that earlier this year, B suffered from headaches and it was then discovered that he had dislocated a shoulder at the father's home.

5. Counselling was arranged and the counsellor, the mother deposed, expressed some concerns about inappropriate physical discipline.  A form 4 notice of child abuse was filed. 

6. The father responded in early September, seeking an order that the children live with him and the mother's time with the children be reserved until she complies with certain conditions, such as completing a parenting course.  In essence, the father denies all allegations made against him.  His evidence is that earlier in the year the mother made allegations of sexual abuse against him, which were investigated by the Department of Human Services and not substantiated.  From his perspective, this is another step, designed to undermine his relationship with his children.

7. The case was transferred from the Federal Magistrates' Court to this court in September.  Later that month the Magellan registrar made orders which will result, in due course, in this court receiving a report from the Department of Human Services, summarising its investigations into the recently filed form 4.  It is anticipated that report will be ready in December.

8. The focus of the case, it must be said, is on things said by B and on B’s attachments, state of mind and general disposition.  Dr N has prepared a report, which is annexed to an affidavit filed on 14 November.  It is a very comprehensive report.  She refers in it to other professionals who have dealt with B, particularly Ms T at Y Centre.  She also refers to some involvement with B’s paediatrician and with his teachers.

9. Dr N’s report makes it clear that she sees the conflict between the parents as the significant issue in this case.  In her professional opinion, B is a child with behavioural problems which are likely to have a psychological basis and his alleged disclosures have to be considered in the whole context of those circumstances.  The observed interaction between the father and son when with her was certainly not indicative of a scared or frightened child, or one whose relationship with his father is not good.

10. It is common ground that, pending the receipt of the report from DHS, the father should resume spending time with the children.  He has not seen them since April, save for the purpose of Dr N’s report and the court's emphasis needs to be on re-establishing that time.  In a sense the quantum of time, whilst understandably very important to each of the parents, is less important than the re-establishment of the time.

11. The mother seeks that time re-commence from 10.00 am. to 4.00 pm. on a day in the weekend until Christmas, at which some time overnight would be introduced.  She also seeks that once the children stay overnight with the father, the father's mother be in general attendance.

12. The father seeks the immediate re-establishment of the time to which he was entitled pursuant to the earlier orders. 

13. The independent children's lawyer supports a re-introduction of time, broadly in line with that proposed by the mother.  She has referred to perhaps the importance of reassuring everyone; children, father and mother.  There are differences in the experts' views (I say that based on a report of Ms T’s views) and until the court can determine the competing allegations, it must err on the side of caution, focusing on the best interests of the children.

14. About the law I will say only this.  The focus of the court must be on the children's best interests, not the parent's wishes or desires.  The court has to balance two important but sometimes competing propositions.  The first is the importance of protecting children from the potential for physical or psychological abuse.  The second is the importance to children of meaningful relationships with both their parents and other people of importance to them. 

15. I am mindful that there are competing residence applications before the court.  The parties need to bear that in mind, as must the court.  This is not a case about the time the children should spend with their father;  the father is seeking that they move to live with him.

16. I do propose to make orders broadly as submitted by counsel for the mother.  In my view, time should recommence this weekend.  If the father sought to spend the time on Saturday, in G, I would provide for that.  If not, I think it prudent to make it the Sunday, so the children can spend the time at the farm, even though a lot of driving is involved.  That will be this Sunday, 23 November, from 10.00 am. to 4.00 pm. 

17. I propose that time for that period on the following Sundays, through to Sunday, 21 December.  The existing orders provide for the father to spend time with the children from 3:00 pm. on Christmas Day and I will make an order in those terms.  On that occasion, the children will stay with him until 5 pm on Boxing Day. 

18. When the Department of Human Services report is released, the Magellan registrar is to be contacted.  She will then either list the case to a trial notice list - so it will move along the case management pathway - on 11 February at 11.30 am. or, if you all agree it needs another judicial listing, she will put it into the next available list, even if that means some over-listing.

19. Between Christmas and the proposed trial notice listing on 11 February, the children will be with the father on every second weekend, from 10:00 am. on Saturday to 5:00 pm. on Sunday.  During those overnight periods, the paternal grandmother is to be in substantial attendance.  That is not a supervision order.  It is a substantial attendance order.

20. The court will take out that order.  I will also make, by consent, the orders advanced by counsel, relating to the provision of information to the father, and order that the Department of Human Services be provided with a copy of Dr N’s report. 

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

Dated the           day of             2008.

…………………………………………
Associate.