Dunbar and Bath

[2009] FamCA 555

FAMILY COURT OF AUSTRALIA

DUNBAR & BATH [2009] FamCA 555

FAMILY LAW – PRACTICE AND PROCEDURE – Interim children’s issues – Case management

Family Law Act 1975 (Cth)

APPLICANT: MR DUNBAR

RESPONDENT: MS BATH

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1358 of 2008

DATE DELIVERED: 22 JUNE 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 22 JUNE 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR DICKSON

SOLICITOR FOR THE APPLICANT: ROHELLE BELCHER

COUNSEL FOR THE RESPONDENT: MR BARBAYANNIS

SOLICITOR FOR THE RESPONDENT: HARTLEYS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR COMBES

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: AGRICOLA WUNDERLICH & ASSOCIATES

Orders

IT IS ORDERED:

1. THAT the further hearing of all extant applications be adjourned before Young J to 4 September 2009 at 10.00 a.m. (subject to any part heard defended matters).

2. THAT the children H born … November 1996 and C born … June 1998 live with the father.

3. THAT paragraphs 3 and 4 of the orders pronounced 13 March 2009 remain in full force and effect.

4. THAT on or before 22 July 2009 the mother instruct her solicitors to make, file and serve on her behalf an affidavit deposing as to:

   (a)her attendance for urine screens as requested by the Independent Children’s Lawyer on 17 March, 8 April, 9 February, 2 March, 2 April, 30 April and 10 June of 2009;

   (b)that if she did not attend for such screens then the reasons why;

   (c)if she did attend then a full and proper disclosure of the results thereof;

   (d)her ongoing and requested attendance for further assessments as required pursuant to paragraph 11 of the orders of this court made 18 April 2008 and the further order now made by the Werribee Magistrates Court on 25 March 2009;

   (e)the reason, or medical condition preventing her attendance at court this day including the production of any available medical certificate;

   (f)the circumstances and the events giving rise to and full particulars of the conviction recorded in the Werribee Magistrates Court on 25 March 2009 (including a full disclosure of all of the occupants of the motor vehicle at the time of the offence).

5. THAT the parties each do all acts and things and complete all in-take interviews and any other document required to pursue acceptance by the W Contact Service on the upcoming interview dates (father 24 June and mother 26 June 2009).

6. THAT pending acceptance of the mother into the W contact program the children H and C are to spend one (1) hour on each Sunday at her home with the father to deliver or facilitate the travel arrangements of the children to the home and the mother to be responsible for ensuring that the children, by themselves or with her direct assistance are returned punctually to the father’s home at the conclusion of the one (1) hour period (it is noted that the father has requested this period of one (1) hour to commence at 10.00 a.m. or 11.00 a.m., unless otherwise agreed).

7. THAT liberty be reserved to all parties to have this matter mentioned by arrangement with the associate to Young J in the event of the children, or one of them, not being punctually returned at the conclusion of any time spent with the mother or any other genuine and serious issue that may arise.

8. THAT on or before 22 July 2009 the mother instruct her solicitors to prepare an updated affidavit of her current partner, Mr A, deposing as to his current domestic circumstances, working hours and availability to assist the mother in the care of any and all of the various children now in her presence and in particular with any assistance that may be required by H or C.

9. THAT paragraph 7 of the orders of the Senior Registrar dated 24 February 2009 be suspended.

10. THAT any question of costs of or incidental to the appearance this day be reserved.

11. Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

12. THAT pursuant to s62G(2) of the Family Law Act 1975 the Family Consultant, Ms N, be requested to further interview the parents and H and C and provide, in short form, an updated Family Report for the adjourned hearing date.

13. THAT the mother be permitted to telephone H or C, on the father’s home landline telephone.

14. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

15. THAT on the adjourned hearing date each of the mother and father are to physically attend court for the duration of the proceedings unless otherwise formally excused by court order.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the father, mother and Independent Children’s Lawyer.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1358 of 2008

MR DUNBAR

Applicant

And

MS BATH

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In the matter of Dunbar & Bath and the Independent Children's Lawyer, the matter was before me for the commencement of a defended hearing as a less adversarial matter.  Mr Dickson of counsel appeared for the father, who was in court.  Mr Barbayannis of counsel appeared for the mother, who was not in court.  Mr Combes appears for the Independent Children's Lawyer, who was briefly in court at the commencement of the proceedings but thereafter left the court hearing.

2. There are two children of this relationship; H who is not yet 13 years of age, and C who is 11 years of age.  The mother has four other children by various partners:  J aged 6, Y 3 years, T 18 months and P some 6 months of age.  They all live with her and her new partner Mr A.

3. At the commencement of the proceedings there was an updated report from a Family Consultant Ms N dated 20 May 2009.  That report was prepared as an identification of issues in the matter and it clearly is not and has not been prepared as a full family report.  The key issues were identified by Ms N on page 1 of that report and include the capacity of both parents to foster a relationship with the other parent.  On the material before me that is not on the current agenda of either parent and may unlikely not occur.

4. More significantly, an issue is the time that both girls should spend with each parent, and in the particular aspect of this case with their mother, with whom they currently spend no ongoing day‑to‑day time.  Otherwise there are the significant allegations that are made by one parent at the other parent as to alleged violence, alcohol or consumption of drugs.

5. The further directions as assessed by Ms N highlight that the girls should remain living with their father but spend time with their mother on fortnightly weekends from Saturday morning until Sunday afternoon and/or other times.  I should add that counsel in this case has highlighted that may have been a long‑term and not immediate direction of the Family Consultant, but she was not sought to be cross‑examined, has not been cross‑examined and I have dealt with her report before the court as one of issue identification rather than a considered and wholly researched family report.

6. The matter has been listed on a number of occasions before Senior Registrar FitzGibbon.  The most recent of those hearing dates were in February of 2009, when orders were made for the return of C and for each of the children to live with the father and otherwise for mother to spend time with the children on midweek occasions.

7. The subsequent and more substantive order was made again by the Senior Registrar on 13 March 2009 when all parties were represented and orders were made by the court and not by consent.  Those orders brought about the return of C to the primary care of her father, suspended otherwise the February orders where time was to be spent by the mother with the children and set up a regime whereby supervised time would be available to the mother at the W Contact Centre.  I have had particular regard to paragraphs 3 and 4 of those orders.  I also note by those orders there was a costs payment required to be made by the mother to the father of $2,000, with the Independent Children’s Lawyer's costs on that occasion reserved.

8. There have been many events occurring in the lives of the parents, primarily the mother, since that March date, though few of them have been put before the court in any detail.  The matter was docketed to my defended list in or about March and for that reason comes on for hearing this day.

9. There have been various documents subpoenaed to court, including the updated file of the Department of Human Services, Victoria Police and other organisations.  It now appears that on or about 25 March and for an episode that occurred in late 2008 the mother was charged with driving under the influence of alcohol.  She resisted the efforts of the police and seemingly failed to give a breath test.  Those matters are incomplete as the evidence is not before the court but it does seem that she has been dealt with at a Magistrates Court hearing and is without a licence to drive a motor car and is serving a 12‑month community based order.  Otherwise the court waits to be informed on matters of and related to that or any other incident.

10. It is somewhat remarkable that the parenting questionnaire completed only a few days ago by the mother makes no reference to that incident or the consequences therefrom.  The mother is not at court today.  Her recently engaged barrister advised the court that he did have a telephone conference yesterday, that is Sunday, 21 June, with the mother, and at my request has had a further discussion with her today.  The mother is at home.  She has four children under the age of six years to care for with her today.  Her partner is unavailable, perhaps due to work commitments.

11. What did become apparent was that the mother self-admitted herself to hospital either for back injury pain or pneumonia between 25 May and 27 May of this year.  What impact that had on her lack of preparation of the case or instructions to solicitors, or her failure to attend court this day, is somewhat unknown.

12. Pursuant to the order of the Senior Registrar, the parties were to complete documents to facilitate future time to be spent at W Contact Centre.  I now understand that both parties have completed all documents and there are intake interviews with the father arranged for this Wednesday, 24 June, and for the mother this Friday, 26 June.  It is imperative that both parties punctually attend those interviews and all bureaucratic requirements be completed to facilitate the option of time being available on a supervised basis for H and C to see their mother at W Centre.

13. I do not underestimate the practical difficulties of a mother with no motor car licence and with four children under six in making available not just the time but particularly the option of travelling to and from that supervised centre.  That is a matter that solicitors for all parties must concern themselves with forthwith.  It does not help the children to have in place the option of a future order that is wholly unworkable.  Commonsense should apply, though it has not applied for so many issues in this case thus far.

14. I rightly am concerned of the level of performance of the mother's solicitors.  The information before me is not complete.  Indeed, it does not fairly present their client's circumstances.  There validly can be very real criticisms offered of the mother personally, on the material before me, as to her failure to submit to drug tests and/or to have the results therefrom known.  Likewise I find it difficult to understand the level of supervision and attention given by the Independent Children's Lawyer to those drug test outcomes and/or to obtaining information or at least raising the matter with the court in a more diligent manner.  Again there may be reasons but I record, as the matter is coming back before me, my preliminary thoughts.

15. This matter does present issues related to the behaviour, character and understanding of the parties, certainly the mother, that need some very real attention and assistance from practitioners.  The overwhelming obligation in this case is for the court to make orders that in the best interests of H and C.

16. It is very clear from reading the preliminary report and issues identified by the Family Consultant that C does have a concern for, or indeed a level of responsibility for her mother and her current predicament, and no doubt has the love of and wants to spend some time with the mother.  Whether or not the mother's views are more self-interested and looking for help from C where she has no‑one else to receive help from, I do not know and do not pursue that matter on the material now before me.

17. I require the mother and father personally to attend court on the adjourned hearing date before me.  I require some commonsense level of discussion between solicitors and hopefully parents as to an interim, workable scenario where C and H, but particularly C on the material in Ms N’s report, is not deprived of spending time with her mother.

18. I well understand that the mother has failed in a number of basic issues to promote her case.  She has clearly overheld in the past, and in the clearest of terms, and one that I trust her solicitors will communicate to her, that is not to happen again.

19. These parties live approximately 500 metres apart.  Given the ages of H and C, there must be some sensible level of communication.  I am yet to hear why the children could not walk or otherwise travel between the respective homes, subject to weather conditions.  It is an issue that the mother understands the need to return the children, not to expose them to risk or drugs or unseemly behaviour.  But that will become clear if and when the mother's solicitors ever deem to put before the court proper material.  I certainly expect the mother's affidavit, that I will require to be filed, to be drawn with some level of care and attention, and indeed accuracy and not in the offhanded manner that some of the material filed on behalf of the mother has been so far prepared.

20. I record my expectation that there is a more meaningful role for the Independent Children's Lawyer to play in this case.  That person was appointed to undertake a role that is necessary for these two children.  It is not a hands-off role.  It does in this case require some level of active involvement and understanding, certainly to follow‑up requirements and/or to talk to the children and/or to understand their point of view and their needs.  So far, on the material before me and without endeavouring to be unduly harsh I do not see any evidence of that level of involvement.

21. This should not be an altogether difficult matter.  These children are not babies.  They are of an age where they have certain wishes and understanding, and clearly for them to know both their parents is important.

22. I have been asked by Mr Dickson, counsel for the father, to make orders that would effectively be self-executing if the mother did not follow up with W Centre and/or make more of an effort to see the children, to comply with court orders and otherwise to advise the court of her current circumstances.  Whilst I can understand that request and can see it to be somewhat in the interests of the father, that may not align with the immediate and long‑term interests of the children.

23. Fundamentally however the mother, for all the difficulties she has with her domestic circumstance and all of the responsibilities of four other young children, must accord some level of priority to her case and to H and C, and involve them in her life in a responsible, drug-free and incident‑free manner.  Whether or not that can ever occur, only time will tell.

24. With that very limited background, what I propose is to adjourn this matter before me to 10 am on 4 September 2009.  I indicate to all counsel that I have two defended matters, each of three to four days duration, listed at the commencement of that week, Monday, 31 August.  Nevertheless I will find some time, on however limited a basis, to consider the welfare and interests of H and C.

25. I will make an order for both children to live with the father.  At this stage I will make no orders dealing with parental responsibilities.  I will require the mother, in the form of order drafted now by Mr Dickson, to file an affidavit, and again I express my concern that this affidavit is drawn by solicitors with care and attention to all of the factual issues that impact upon the mother and the evidence in this hearing.

26. I will require by order the mother and father to attend the W Centre intake on the dates earlier specified, and to be punctual at the times required.  Certainly the mother's solicitor should actively be involved with W Centre on the day prior to that, to confirm the mother's attendance, and if there are transport or other practical difficulties then somehow between the mother, her partner and/or extended family and/or the father and/or the solicitor, the mother has to make that interview.  That may require others putting themselves out to assist in that regard.

27. What I intend in the period leading up to any availability of supervised time at the W centre is for the children, H and C, to spend time each weekend, on a Sunday, with the mother.  I do not want to specify the hour, because that will depend upon the children's interests and activities, the ability of the father to assist and for the mother to be at home and available.  I intend that time to be spent at the mother's home and not elsewhere, and hopefully with the presence of Mr A and such other level of supervision as may be able to be arranged.

28. My caveat is that the children's time is not to be eliminated because there is not another third party responsible person in the home.  I have no evidence of who that person would be.  I am giving perhaps significant weight to the ages of these children and the maturity that C has shown in her comments to the family consultant.

29. It is fundamental, and again I emphasise to the mother and to her lawyers, that there is to be the immediate and punctual return of both children.  The children should be free to ring their father at any time during that time spent with the mother, and indeed if both children want to extend any visit by a short time they should also ring their father.  To make orders for commonsense is a difficulty but I am trying to bring some level of commonsense into this arrangement.

30. I also want to record and require the solicitors for the mother and the Independent Children's Lawyer to ensure that the mother must know that any involvement with alcohol or drugs in the presence of H and C during these times may, subject to all of the evidence, be wholly fatal to any ongoing claim she has before the court.  These children are to receive appropriate parental behaviour and not be subject to risks, violence, alcohol or bad manners.  It is easy for me to record that optimum situation, but otherwise it must be enacted by the parents.

31. Insofar as there is a restraining order against the father imposed by the Senior Registrar, which Mr Dickson has identified, I will discharge that injunction.  If necessary, my intention is that I will be told on the further hearing date that the father has fully cooperated with the orders and has made every effort to ensure that both children have been able to see and spend limited time with the mother.  The caveat of course to that observation is the safety and wellbeing of the children, and only those "on the ground at the appropriate time" will know of the developing scenario.

1. Finally, I would find it helpful if Ms N, as the Family Consultant, could update her issues paper before the court. It probably is too much to expect a more detailed report under section 62G(2) of the Family Law Act 1975 but I would request Ms N have a further interview with the mother and father in the weeks leading up to the further hearing, to identify further issues, the management and observation of these court orders and to be able to identify such issues as may have arisen, including and fundamentally the wishes of the children and what those wishes may be. For that purpose I intend to request a short form family report, so that it does not have the whole of the detail but hopefully deals with those issues. I leave it to the Independent Children's Lawyer to organise that report.

2. I will have these reasons transcribed, taken out and made available to the parties and placed upon the court file.

3. I also want to take this opportunity to encourage the mother at an appropriate time to ring H or C.  It does strike me as being somewhat difficult to understand that she does not ring at least once a week, notwithstanding the pressures of four children under six years of age.  I consider it would be helpful, and insofar as Mr Dickson is drafting orders, to repeat in those orders the ability for the mother to ring the children at a proper time.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: