Every and McNaught

[2008] FamCA 209

FAMILY COURT OF AUSTRALIA

EVERY & MCNAUGHT [2008] FamCA 209

FAMILY LAW  -  CHILDREN  -  Magellan  -  interim orders  -  previous trial adjourned  -  need for determination

Family Law Act 1975 (Cth)

FATHER: Mr Every

MOTHER:	Ms McNaught
INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2242 of 2006

DATE DELIVERED: 25 February 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: 25 February, 2008

JUDGMENT OF: Brown J

HEARING DATE: 25 February, 2008

REPRESENTATION

COUNSEL FOR THE FATHER: Ms A. Glaister

SOLICITOR FOR THE FATHER: McDonald Slater & Lay

THE MOTHER: In person

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr P.A. Marchetti

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Hale & Wakeling

Orders

1. That orders (2)(a) and (2)(b) of the orders made in this Court on 15 November, 2007 be discharged.

1. That until further order the children C born … June, 2002 and B born … September, 2003 spend time with the father as follows :

   (a)from 9:30 am. Saturday until 5:00 pm. Sunday each alternate weekend, commencing on 1 March, 2008; 

(b)for one half of each term school holiday period as agreed and in default of agreement, for the first half, such time to commence at 9:00 am. on the first Saturday and conclude on the middle Saturday at 4:00 pm.;  and

(c)for one half of the long summer vacation at times to be agreed and in default of agreement, for the first half in 2008 and in each alternate year thereafter and in the second half in 2009 and in each alternate year thereafter.

1. That the mother and the father do all things and attend all appointments to enrol in the Gordoncare Stand By Me Program to be conducted on the 17^th and 31^st May, 2008. 

IT IS FURTHER ORDERED

1. That the registrar of the Melbourne registry of the Family Court of Australia arrange for a subpoena to issue to the Department of Human Services for the production of the relevant file by 30 April, 2008, seeking the production of records relating to all notifications received and investigations undertaken in respect of the children C born … June, 2002 since 1 December, 2007 and B born ... September, 2003. 

1. That upon receiving an invoice from Dr. S the mother pay the amount invoiced within two weeks and a copy of Dr. S’s report be provided to the Magellan registrar as soon as practicable thereafter. 

1. That the parties attend a pre-trial conference listing with the Magellan Registrar at 2:15 pm. on 11 June, 2008.

1. That the order made herein on 15 November, 2007 for the preparation of a further Family Report be discharged. 

1. That the father and mother each have leave to file and serve an updated affidavit and any such affidavit be filed and served by 30 May, 2008.

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

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

1. That the orders of 15 November, 2007 otherwise remain in full force and effect and changeovers shall continue to occur at Gordoncare.

1. That the mother has advised the Court that she has advised Ms. W of the Department of Human Services of the further allegations raised by her before the Honourable Justice Young in November 2007 and that Ms. W has conducted a home visit on the mother since being advised of those further allegations. 

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:  MLF 2242 of 2006

MR EVERY

Father

And

MS McNAUGHT

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I will not rehearse the long history of this case, which came before Young J for trial on 15 November 2007.  Considerable effort had been expended on getting the matter ready for trial.  His Honour adjourned it to today, with a note that it be referred for consideration for inclusion in the defended list of Magellan cases commencing 5 May.  That is simply not possible, having regard to the unreached matters from the last sittings.  His Honour made various orders, including an order for psychiatric assessments by Dr S.  The parties were to attend the Stand By Me parenting program at Gordon Care, and to undertake supervised drug testing.  An updated family report was to be prepared, as recommended by the independent children's lawyer.

1. I have the report of Dr S in respect of the father.  A report of the mother has apparently been completed but as the invoice has not yet been paid, Dr S has not released it.  The mother has said she will pay that within two weeks. 

1. The parties have agreed on parenting orders to operate pending trial.  Having regard to those orders, I cannot see the usefulness of a family report and I will discharge the order for a further family report.  There seems to be a plethora of evidence before the court. 

1. A subpoena will be issued to DHS to produce records relating to any notification and/or investigations since 1 December 2007.  If the mother has had the DHS contacts of which she has told me, they will be there in the DHS records and that material will be before the court when the pre-trial conference is convened.

1. If the mother does not pay Dr. S, and the report is unavailable, the case should be listed for trial in any event.  The best interests of the parties’ two boys, aged five and four, require a determination.

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

Dated the           day of            2008.

…………………………………………
Associate.