Dupont and Unwin - [2013] FamCA 1068

FAMILY COURT OF AUSTRALIA

DUPONT & UNWIN	[2013] FamCA 1068
FAMILY LAW – PRACTICE AND PROCEDURE – Steps to ensure readiness for trial or mediation

APPLICANT:

Ms Unwin

RESPONDENT:

Ms Dupont

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Ms C Smith

FILE NUMBER:

MLC

9645

2011

DATE DELIVERED:

29 October 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

29 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Nicola Hoobin

COUNSEL FOR THE RESPONDENT:

Ms Phelan

SOLICITOR FOR THE RESPONDENT:

Moores Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms McNamee
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Victoria Legal Aid

Orders

IT IS ORDERED THAT

1.This matter be listed for mention before me in Court on 6 March 2014 at 9.00 am for the purpose of checking on the readiness of the matter for trial or mediation (“the adjourned date”).
2.The applicant and the respondent do all acts and things requested by the Independent Children’s Lawyer to make application to attend a Round Table Mediation Conference with Victoria Legal Aid in March 2014 after the adjourned date.
3.Notwithstanding any other order to the contrary, for the purpose of application to Victoria Legal Aid Round Table Dispute Management the Independent Children’s Lawyer is hereby authorised to provide to Victoria Legal Aid Round Table Dispute Management:-
a.      any family report;
b.      any Children and Parent’s Issues Assessment;
c.      any transcript of viva-voce evidence of a family consultant or reasons for decision; and
d.      any other report by a professional in this matter that the Independent Children’s Lawyer considers is necessary.
4.The issue of whether or not the parties do attend a round table mediation conference as arranged by the Independent Children’s Lawyer be reserved for determination on the adjourned date.
5.By not later than 17 February 2014 the Independent Children’s Lawyer obtain a report from the agency who is supervising time spent between the child L born … 2010, (“the child”) and the applicant and publish same to the parties and to my Associate – email … .
6.Until further order, the respondent Ms Dupont notify the applicant, Ms Unwin, forthwith upon publication of her employment roster, of nightshifts that she is required to work which she says preclude her from delivering the child for time spent with the applicant on Monday mornings. In the event of any variation of such roster keep the applicant, Ms Unwin, advised in writing as soon as practicable of the variations.
7.Until further order, in the event that time to be spent cannot take place because the respondent, Ms Dupont, is rostered to, and does in fact, work from 11.00 pm on Sunday to 7.00 am on any Monday on which the child is to see the applicant, the two hours of time lost be made up by extending the next two periods of time spent by one hour so that it commences at 10.00 am and concludes at 1.00 pm.
8.The parties promptly notify the Independent Children’s Lawyer of the outcome of the work place relations complaint against Ms Unwin currently being undertaken by Victoria Police.
9.The reasons for decision this day be transcribed and when settled copies be made available to the parties.
10.Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrars Riddiford or Sikiotis for the return of subpoena or on any date notified to the parties by my Chambers for the return of subpeoana(s).
11.Pursuant to Sections 65DA(2) and 62B the particulars and 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 Fact Sheet attached hereto and those particulars are included in these orders.
12.If it is not already the case, henceforth Registrar Sikiotis be the Docket Registrar for this matter and her assigned Case Coordinator be noted in the records of the Court as the Case Coordinator for this matter.

IT IS DIRECTED:

13.That the minute of proposed orders of the applicant be marked Exhibit “AM1” and remain on the Court file.
14.That the minute of proposed orders of the respondent be marked Exhibit “RM1” and remain on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dupont & Unwin 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 MELBOURNE

FILE NUMBER: MLC 9645 of 2011

Ms Unwin

Applicant

And

Ms Dupont

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX-TEMPORE

This matter comes before me as a first day matter, having been adjourned from the list of Dessau J, as she then was. It involves a dispute between the mothers, Ms Unwin, who is the applicant, and Ms Dupont, who is the respondent. L, (“the child”) is three years old, having been born in 2010. I won’t go through a history of the matter, which is thoroughly rehearsed in the two reports of Dr A, clinical psychologist, dated respectively 9 April 2013 and 20 September 2012. There is also the report of Dr D, psychiatrist, the reports which are annexed to his affidavit sworn on 10 April 2013.
Today each party has handed up a minute of the order which they seek on a final basis. Those sought by Ms Dupont are marked “RM1”, and those sought by Ms Unwin are marked “AM1”. The Independent Children’s Lawyer, Ms Jenkins, has indicated through her counsel Ms McNamee that her preliminary view at this stage is that the women share parental responsibility in relation to the child, and that the time which is spent between the child and Ms Unwin be unsupervised, start at something like daytime periods and work up to overnight and weekend periods. It is clear she does not endorse equal shared time, and she doesn’t put a timeframe around the progression.
Given the child’s very tender years, I have discussed with the parties and their counsel today whether this is a matter which should be accommodated at a final hearing as soon as practicable, and I’m unconvinced that that is the case. It may be that there are incremental steps in relation to the child before there is a final hearing, but at this stage I’m not making that decision.
During submissions, I was informed that there is an internal Victoria Police investigation into the conduct of Ms Unwin. Many people, nearly everyone in this case, is a member of the Victoria Police Force, that is, the two mothers and Ms Dupont’s current partner, who is Ms Z. Ms Phelan, counsel for Ms Unwin, referred me to pages 3 and 4 of the second report of Dr A dated 9 April 2013, in particular, to comments attributed to Ms Dupont in the following passages:-
It is [Ms Dupont’s] position that she was pressured into allowing [Ms Unwin] to see [the child] at all, and maintained her position that [Ms Unwin] had never been involved in [the child’s] life and continued to represent a great physical risk to [the child]. She does not believe that [the child] should see [Ms Unwin] in any form and considers that [Ms Unwin] is likely to physically harm [the child] (“her threats…She said she didn’t care [and that she] will drive that [motor vehicle] into me and [the child]”). She believes that [Ms Unwin] “hates [her] with a passion” [and] hates [Ms Z] with a passion”, such that [Ms Unwin] would kill [the child] to hurt them. She said “I don’t want her to do anything to my daughter. I know what she is like”. [Ms Dupont] stated that she believes [Ms Unwin] intends to harm [the child] and would have no compunction doing so because “there is no blood connection”.
…
[Ms Dupont] portrayed [Ms Unwin] as having a Machiavellian character who is all-powerful and manipulative (“she is playing the game”). She argued that she is being protective of [the child] and contended that she believes that [Ms Unwin] is being spiteful in her attempt to see [the child] (“I am trying to protect [the child]. I know this is out of spite”). She described [Ms Unwin] as “she is a bully, she is a stand over (sic), she is manipulative, she pushed people” and added “I have seen it myself” to suggest that she understands how [Ms Unwin] typically operates with other people. She also appeared to consider that [Ms Unwin] has psychopathic tendencies, stating that [Ms Unwin] is a “sick, sick woman” and describing her as lacking any empathy for any others or [the child].
Ms Dupont does not take issue with the accuracy of the report by Dr A. The Court is informed through Ms Phelan that some 18 to 22 members of Victoria Police have made complaints against Ms Unwin in relation to behaviour, and that that is in the process of being investigated. As best I can glean from the parties, there will not be any one formal hearing, but the investigative process is conducted on a number of interviews, and at some stage charges will either be laid against Ms Unwin or the complaint will not proceed. It is not certain, in the event that it is the latter, whether there will be a written determination as to what the complaint was, what charges were considered and not proceeded with. Therefore I have required each party to notify the Independent Children’s Lawyer as soon as they can of the outcome of the internal Victoria Police investigation.
It’s not my intention that these proceedings should cut across that investigation by disrupting it, either by requiring documents to be produced in this Court, very few of which could be tested in this Court, and it does seem to me that it is an investigation the outcome from which is relevant to these proceedings. In that context, Ms Phelan informs the Court that she is instructed that her client Ms Dupont expects that all of what she has said in the paragraphs extracted above will be proven to be correct in the Victoria Police investigation.
In the context of whether or not the parties would be at all assisted by a round table mediation conference, Ms Phelan said that it was nothing but the outcome of the Victoria Police workplace relations complaint that would “change her mind”, or words to that effect. I asked whether, if the outcome of the Victoria Police investigation exculpated Ms Unwin or was not as her client was currently anticipating, that her client’s mind would change, and Ms Phelan responded that she did not know and could not say that.
It’s a complex matter. The parties contribute to some of that complexity, but it is the case that the matter is now in my docket and will remain so. I will deal with the final hearing, and if I am reasonably available, I will deal with each and every interim dispute that arises along the way. At the moment there are current orders for the applicant Ms Unwin to see the child each Monday for two hours under the supervision of a paid agency, which is Ms S. The Independent Children’s Lawyer has requested a report from Ms S and does not anticipate any difficulty in obtaining a report by February next year which will cover all the time spent up to then.
There has been some disruption to time spent by virtue, Ms Dupont says, of her working night shift. Ms Dupont says that when she works night shift, she cannot get the child to the child care facility in Suburb E by 10 am and then be expected to wait until 12 noon and drive back to Town F. Ms Dupont relocated to Town F after the women ceased to occupy the same residence in 2011. An agreement has now been reached whereby the applicant Ms Unwin will receive prompt notice of any night-time shifts which Ms Dupont is required to work in the hours immediately preceding the Monday time.
If that occurs, then the next two periods of time spent will be extended by an hour, so they will run from 10 am to 1 pm. However, if it is a regular feature and the effect is that the time spent between the child and the applicant becomes something more akin to fortnightly or three times a month, I would expect there to be some application for a variation of orders which accommodates a more regular time, such as the weekly time clearly envisaged by the orders which are extant.
I make the usual orders pertaining to matters in my docket, including that the management be passed to Registrar Sikiotis if it isn’t already with her, and that there be unlimited subpoenas able to be issued by the parties. But as is evident from these reasons, I do not expect any subpoenas will be served which have the effect of disrupting the internal investigation by Victoria Police at this stage. It doesn’t seem to be in the child’s best interests to do so.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 29 October 2013.

Associate:

Date: 5 February 2014.