Fenner and Ogg

[2007] FamCA 763

FAMILY COURT OF AUSTRALIA

FENNER & OGG [2007] FamCA 763

FAMILY LAW - CHILDREN – Magellan – Interim orders

Family Law Act 1975 (Cth)

FATHER: MR OGG

MOTHER: MS FENNER

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3489 of 2003

DATE DELIVERED: 28 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: BROWN J

HEARING DATE: 28 June, 2007

REPRESENTATION

THE FATHER In person

COUNSEL FOR THE MOTHER: Mr Naidoo

SOLICITOR FOR THE MOTHER: Eugene Naidoo & Assoc.

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr M. Weston

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Perry Weston

Orders

1. That pursuant to s.62G(2) of the Family Law Act1975 a Family Report be prepared and released before 17 August 2007.   

2. That the parties attend a Trial Notice Listing with the Magellan Registrar on 12 September 2007 at 12.30pm.

3. That all interim applications and contravention applications be consolidated with the application for final orders.

4. That the father and mother each attend a psychiatrist nominated by the Independent Children’s Lawyer for the purpose of a psychiatric assessment and the psychiatrist have leave to inspect subpoenaed documents and the Family Report, if released, and to facilitate the order the Independent Children’s Lawyer may copy any subpoenaed documents and provide the copies to the psychiatrist.

5. It is requested that Victoria Legal Aid fund the psychiatric assessment and otherwise, each party initially bear half the cost, final responsibility for such cost to be determined by the trial Judge.

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

7. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3489  of 2003

MR OGG

Father

And

MS FENNER

Mother

Independent children’s lawyer

REASONS FOR JUDGMENT

1. This matter has a considerable history.  The parties have two children;  M is 12 and J is 10.

2. In 2003, orders were made providing for them to live with their mother.  Both parents were to be jointly responsible for their day-to-day and long-term care and welfare and the father was to have frequent and regular contact.

3. There were further proceedings in 2005.  In December that year Senior Registrar FitzGibbon made orders providing that neither party change the children's schools without written agreement, and the mother not move the children’s place of residence more than 15 kilometres from the father's then current address. 

4. The father subsequently filed a number of contravention applications.  As I have been told this morning, Kay J found one such contravention proven, relating to a breach of the order that the children's schools not be changed.  The father is particularly concerned about that, and particularly concerned about allegations made in that case.  Whilst I have not read his Honour's reasons, he found the case proven and to do so must have found that the mother did not have a reasonable excuse for contravening the order. 

5. The mother then filed an application on 22 March, 2007 seeking a discharge of the existing parenting orders.  She sought that the children live with her, she have sole parental responsibility and the father have no contact at all with the children.  At the same time she filed a form 4, being a notice of abuse or risk of abuse, alleging physical abuse by the father and his mother, and that the children had suffered a number of physical injuries.

6. Later that month the father, too, filed a form 4, in which he alleged that the mother denigrated him and his mother in the presence of the children, encouraged them to misbehave and be verbally abusive, and that M was claiming that his father and the grandmother told lies, this being indicative of the mother’s denigration.

7. On 2 April 2007 Mushin J made orders appointing an independent children's lawyer, seeking the department intervene and suspending the father's time with, and communication with, the children.  He adjourned the case to 7 May.  On that day, Senior Registrar FitzGibbon referred it to this list for assessment.  The matter was assessed as appropriate for the Magellan stream and the usual procedural orders were made.

8. I appreciate that, from the father's perspective, he has been without any contact with the children for some time and feels that the Court has not dealt with his allegations and concerns.  However, in this list the matter will move more quickly to a final hearing, which is what it needs. 

9. Before the Court is a report from the Department of Human Services, dated 14 May, 2007.  DHS workers spoke with both children.  The children reported that their father was smoking marijuana, leaving them alone, threatening to kill their mother and talking about where he would bury her.  J reported one instance of physical abuse by the father. 

10. The father’s position is that the children were coached by their mother to make these complaints to workers.  He alleges that the mother has a psychological disorder and has mentally abused the children;  she has invented these allegations, coached the children to make them and taken them away from a school where they had friends and good support.  He alleges this is all part of a pattern of conduct designed to remove him from the children's lives.

11. M's counsellor, who saw him between March and May this year, reported that M was afraid of going to see his father, and was soiling himself.  J's school counsellor stated that he had engaged in some self-harming behaviour.  The children seem guarded.  An affidavit from the principal of the children’s former school spoke of concern about J's talk of suicide.  He deposed to there being no inappropriate behaviour at the school by the father and he had no recollection of ever telling the mother the children had been frightened of the father. 

12. The Department of Human Services’ report recommends that the children participate in counselling, that the parents undertake parenting courses and they not discuss the proceedings with the children.  That is a counsel of perfection;  on my analysis, it is not likely to resolve the current pressing problems.  I understand why the independent children's lawyer would like to see the case resolved that way.  It is consistent with the changes made to the legislation in 2006 and the aspiration to have parents agree about parenting their children.  But this is now an intractable dispute.  Contravention applications have been filed, now consolidated with the applications for final orders.  I understand the father might like those applications heard but they will not resolve the problems.  Contravention applications provide the potential for a sanction, but not a considered hearing of all the evidence necessary to determine whether there should be significant changes to the current orders. 

13. I am going to order that both parties attend for psychiatric assessment but that will not be a precursor to the preparation of a family report.  A family report is to be prepared and released before 17 August 2007.  The parties will then attend a trial notice listing with the Magellan Registrar on 12 September 2007 at 12.30.  The father and mother must each attend upon a psychiatrist nominated by the independent children's lawyer for the preparation of a psychiatric assessment and the psychiatrist will have leave to inspect subpoenaed documents and the family report, if it has then been released.  To facilitate that order, the independent children's lawyer may copy any subpoenaed document and provide the copy to the psychiatrist.  Victoria Legal Aid is requested to fund the psychiatric assessments;  otherwise, each party shall initially bear half the cost, and the final responsibility shall be determined by the trial judge.  I will order that my reasons be transcribed and certify for solicitors acting as counsel.   

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

Dated the           day of            2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as FENNER & OGG