Fagan and Fagan
[2007] FMCAfam 888
•12 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAGAN & FAGAN | [2007] FMCAfam 888 |
| FAMILY LAW – Child – directions hearing – family assessment tendered – report writer raises concerns about father’s alcohol use – whether father should be compelled to undergo drug and alcohol assessment. |
| Applicant: | MS FAGAN |
| Respondent: | MR FAGAN |
| File number: | ADC 1604 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 12 September 2007 |
| Date of last submission: | 12 September 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 12 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms J L Belchamber |
| Solicitors for the Applicant: | Belchamber Legal |
| Counsel for the Respondent: | Ms D E Morosini |
| Solicitors for the Respondent: | Di Morosini and Co |
ORDERS
BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER
Paragraphs 2 & 4 of the Order of 25 May 2007 are discharged.
The husband shall spend time with M
(a)each alternate weekend commencing Friday 21st September from 4pm until Sunday 23rd at 7:30pm and
(b)each Wednesday from 4pm to 7:30pm
(c)at other times as agreed on special occasions.
Handovers shall take place at the home of the wife at the commencement of the husband's time and at the home of the husband at the conclusion thereof.
M shall have access to his mobile telephone at all times when in the care of the husband.
The wife shall be at liberty to obtain a referral for counselling for M as recommended by Ms Roxanne Hewett at page 16 of her report dated 29 August 2007.
Each party shall be and is hereby restrained from denigrating the other in the presence of M and/or from allowing third parties so to do in the presence of M.
AND IT IS ORDERED:
That Mr Fagan attend for an assessment and counselling with Drug and Alcohol Services and provide a report to the Court.
That Mr Fagan provide to the Court an updated medical report in relation to the impact of his alleged alcohol use on his physical health.
That this matter be listed for trial for three days at 10.00am on the 4th, 5th and 6th of March 2008.
That the wife file and serve any additional affidavits of evidence on which she intends to rely at trial together with an updated Financial Statement if necessary by 12 February 2008.
That the husband file and serve all affidavits of evidence on which he intends to rely at trial together with an updated Financial Statement if necessary by 26 February 2008.
That the applicant wife pay the hearing fee or obtain a remission certificate in respect thereof within 28 days of today’s date.
IT IS NOTED that publication of this judgment under the pseudonym Fagan & Fagan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1604 of 2007
| MS FAGAN |
Applicant
And
| MR FAGAN |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. The respondent was not present at court to hear them. Accordingly, at the request of his lawyer Ms Morosini, the reasons have been transcribed. I have corrected obvious grammatical errors and any errors of expression made in the orally delivered judgment.
The matter of Fagan comes before me today. It is listed for directions today and it is necessary for me to fix the parties' competing applications in respect of arrangements for their child M, and proceedings regarding the division of their marital property for final hearing.
I am going to allocate three days for the final hearing, and they will be on 4, 5 and 6 March 2008. I am regretful that that is so far in the future, but they are the earliest dates I have for a three‑day hearing, and I have decided to allocate three rather than two days due to the fact that there are both property and children's issues to be determined.
The parties have been able to largely agree on interim arrangements for M's care because of a report from Ms Roxanne Hewett, who is a well‑known and experienced psychologist, who has extensive experience in child psychology and also in providing reports to courts such as this one regarding appropriate arrangements for the care of children.
Ms Hewett saw the parties and M, who was aged 11, recently, and she has prepared a report which has been tendered before the court this morning. It is a long and apparently comprehensive report.
Ms Hewett has made a number of recommendations. Two of those recommendations are controversial. They are firstly that Mr Fagan attend an assessment and counselling session with a drug and alcohol counsellor or drug and alcohol service and that there be a report to the court which is directed towards Mr Fagan's use of alcohol, and secondly it has also been recommended that he provide an updated report in respect to the medical impact, if any, regarding his alcohol use on his physical health.
Otherwise, the parties agree that M should spend time with his father on alternate weekends and on Wednesday evenings. It seems that M has some special needs. He has mild motor dyspraxia and he has been described as being anxious and obsessive by nature.
The parties are in dispute regarding Mr Fagan's use of alcohol. It seems to be the position from the mother's point of view that she has been told allegedly by M that his father is drinking surreptitiously. She also found a report from a doctor which indicates that there was some evidence that Mr Fagan was suffering from the physiological effects of alcohol.
Mr Fagan is not prepared to agree to the two recommendations made by Ms Hewett, but Ms Fagan seeks they be made. From her point of view, the alleged use of alcohol by the father is a central issue in this case, and particularly how that impacts on what are the appropriate orders for M to spend time with his father.
I have not had an opportunity to read Ms Roxanne Hewett's report closely because it has just been handed to me. The matter comes before me today and I have to make a decision. Ms Morosini eloquently refutes the need for any such orders, points to the fact that the mother is not so concerned about alcohol use that she does not agree to M spending overnight on weekends with his father, and submits that the two conditions sought are likely to lead to more disputation between the parties, more mistrust, and that will reverberate for M.
Ms Belchamber says that if the orders are not made, from her client's point of view it will remain a live issue until it is put to rest one way or the other, records will be subpoenaed and much time will be spent in investigating the matter.
Although the proceedings before me regarding arrangements for M are essentially adversarial - that is, the parties themselves choose the issues which they want to have litigated - because the proceedings concern the interests of a person who is not strictly a party to the proceedings - that is, M - the proceedings also have an inquisitorial nature.
As a result of recent amendments to the Family Law Act in division 12A, I am also authorised, to some extent, to shape the issues which are to be investigated by the court and I am also directed, wherever possible, to ensure that the proceedings are child‑focused.
It seems to me that M is concerned about this issue of drinking. Whether he is influenced by one or other of his parents I do not know. Ms Morosini says that it may at a later stage be open to me to make certain inferences about Mr Fagan. I am not sure about that, but I have come to the conclusion that, given the mixture of adversarial and inquisitorial flavour in these proceedings, I should make the orders that Ms Hewett recommends in this matter, notwithstanding Mr Fagan's objection to them. I am not persuaded that they would be unnecessarily burdensome for him, and I think if the issue is either put to rest or - one way or the other, that is likely to be in M's best interests.
For all these reasons, I will make the orders as set out at the commencement of these reasons for judgment. That is the orders upon which the parties have agreed and the two other orders recommended by Ms Hewett to which Mr Fagan does not agree.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Penny Smith
Date: 12 September 2007
0
0
0