Flinders and Carmine

[2010] FamCA 119

FAMILY COURT OF AUSTRALIA

FLINDERS & CARMINE [2010] FamCA 119

FAMILY LAW – CHILDREN – Interim orders for the child to spend time with the father – Supervision of child – Appointment of Independent Children’s Lawyer

Family Law Act 1975 (Cth)

APPLICANT: Mr Flinders

RESPONDENT: Ms Carmine

FILE NUMBER: ADC 537 of 2009

DATE DELIVERED: 14 January 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 14 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McQuade

SOLICITOR FOR THE APPLICANT: Christopher Ganzis & Co

COUNSEL FOR THE RESPONDENT: Mr Reynolds

SOLICITOR FOR THE RESPONDENT: SRG Lawyers

Orders

1. That the child .. born … September 2003 spend time with the father as follows:

   a.   from 10:00am until 1:00pm on Sunday 17 January 2010 upon the following conditions:

   i.that the handovers take place at the front gate of the Adelaide Zoo;

   ii.that for the first half hour of that period of time either the mother or her sister, the maternal aunt, be present with the child and the father;

   b.   from 10:00am until 2:00pm on Sunday 24 January 2010 upon the following conditions:

   i.that the handovers take place at Hungry Jacks Restaurant …;

   ii.That for the first half hour of that period of time either the mother or her sister, the maternal aunt, be present with the child and the father;

   c.   from 10:00am until 4:00pm on Sunday 7 February 2010 with handovers to take place at the said Hungry Jacks Restaurant;

   d.   from 10:00am until 4:00pm on Sunday 14 February 2010 with handovers to take place at the said Hungry Jacks Restaurant;

   e.   from 10:00am until 4:00pm on Sunday 28 February 2010 with handovers to take place at the said Hungry Jacks Restaurant;

   f.   from 10:00am until 4:00pm on Sunday 7 March 2010 with handovers to take place at the said Hungry Jacks Restaurant.

2. That thereafter paragraph 3(c) of the orders made on 13 August 2008 and following apply commencing on 21 March 2010.

3. That the father pay the sum of FIFTY DOLLARS [$50.00] towards the travel costs of the mother in relation to the time to be spent on each of 24 January 2010, 14 February 2010 and 7 March 2010 such payment to be made by the father forwarding a money order payable to the mother no later than two [2] days prior to the said occasion of time spent to the mother’s solicitor.

4. That until further order paragraph 4 of the orders made on 13 August 2008 be varied as on and from 21 March 2010 to provide that all handovers shall occur at the place or places as may be agreed between the parties.

5. That pursuant to Section 68L of the Family Law Act 1975 (As Amended) the interests of the child … born … September 2003 be independently represented by a lawyer and that such representation be arranged by the Legal Services Commission of South Australia and that to expedite the appointment of the Independent Children’s Lawyer.

6. That within seven [7] days of the date hereof each party do cause to be forwarded to the said Commission a copy of all documents filed by that party.

7. That this matter be adjourned to a directions hearing before Registrar Paxton at 9:30am on 2 March 2010.

8. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 537 of 2009

MR FLINDERS

Applicant

And

MS CARMINE

Respondent

EX TEMPORE REASONS

1. This matter is before me having been adjourned on 16 December 2009.  I do not propose to dwell on what, unfortunately, happened on that occasion with one counsel having a conflict of interest. Mr Reynolds has appeared today and explained what happened and I accept that explanation. 

2. The position with this case is that the formal application before me is the father’s application filed on 17 September 2009, in which he seeks a variation of the existing final orders, and also interim orders. The mother filed a response on 2 November 2009, where she too, in effect, seeks final orders that would vary the existing final orders and she also seeks certain interim orders. These proceedings were commenced this time in the Federal Magistrates Court but they have now been transferred back to this Court.

3. The parties have undertaken the Child Responsive Program with a family consultant and they have been interviewed. I note the child was not interviewed by the family consultant and I have expressed some concern about that. In any event, I now have before me the Children and Parents’ Issues Assessment emanating from that process dated 6 January 2010. That assessment is not particularly helpful in terms of assisting me to make an order about the ongoing interim situation, but it did raise important issues about the need for both of the parties to change their attitude towards each other and also, particularly for the mother to change her attitude towards the child’s relationship with the father. I have raised with counsel the need for the parties to take up these issues and necessarily through a counselling process. However, I do not propose to make any order today about any counselling. The parties need to make inquiries of available counselling services in their respective areas, the mother living in regional South Australia, the father living in metropolitan Adelaide.

4. Both counsel ask me and I have raised it myself, if this matter is to proceed, and it seems it will be, for an Independent Children’s Lawyer to be appointed. It may well be that the proposed counselling should await the input of the Independent Children’s Lawyer, although if the parties can suggest the counselling services that they could access, then that does not need to await the appointment of the Independent Children’s Lawyer.

5. I am not going to repeat the history of this matter. It is a long history. I have been taken to various aspects of it by both counsel and I have certain views about what has happened and what is happening in this case, which I have expressed today given my involvement in this matter and, indeed, the fact that I was the one to make the final orders back in 2008. I note, of course, that obviously the parties are still in dispute about this matter and, unfortunately, the result of that at the moment is that the child is not seeing his father pursuant to the current orders of this Court. There is a practical problem with simply going back to those orders at the moment, in that the relevant Children’s Contact Service, namely, the Y Children’s Contact Service, have indicated that they are not prepared to make their service available to these parties for handovers, given what developed in the previous use of that service by these parties.

6. As I have said, the parties each have applications before the Court seeking interim orders, but today each party has put proposals to me through their counsel, which differ from their formal applications, but in order to progress the matter I propose to deal with and make an order flowing from those proposals on an interim basis.

7. From the father’s point of view he seeks that commencing this weekend, and it does not matter whether it is Saturday or Sunday, that the child spend time with him for six hours, between 10:00am and 4:00pm, unsupervised, save and except for the first half-hour of that time. That handover take place at the front gate of the Adelaide Zoo and in terms of the supervision that I have referred to, he is agreeable to the mother’s sister, the maternal aunt, being present for the first half-hour of that session, to settle the child down and to smooth the handover process, given that the father has not seen the child now for some time and there are concerns as to the child’s perceptions of his father, given the influence and input of the mother. Then, from there, there will be five sessions following that on a weekly basis, between the same times, but without the attendance of the mother’s sister, and then from there the order of 13 August 2008 is resumed.

8. The mother’s proposal is that the father has six occasions with the child, of either two or three hours’ duration. Her initial position was that she, or her sister, supervise the entirety of those occasions, but her final position today is that she would accept a position where her sister was present for the first half-hour of each of those six occasions, to ensure that the child is comfortable in being handed over to the father, and to settle the child down. From there the mother’s proposal is that there be a move to unsupervised visits on each Saturday, for a further six occasions, each of those occasions being of a period of three hours. Her handover proposal is that that take place at a park in M.

9. The mother asks me to take into account in using her sister, that her sister has a nine week old baby and is limited in terms of her ability to conduct the handover.

10. The mother, I should add – and as I said before – lives in regional South Australia.  It takes her two and a half hours to drive to Adelaide and given that she proposes that the sessions be on an alternate weekend basis because of the cost of travel. She says it costs her $80 or thereabouts in petrol, for example, for the round trip on each occasion. She offers though that on the intervening weekend the father can attend at her home to spend time with the child, I assume – and I think this was put to me – for a period of three hours.

11. This is a matter, as I say, where I do not propose to repeat the history or my preliminary views, given the time it has taken already this morning. However, the prime concern that I have is ensuring that this child re-establishes his relationship with his father and spends time with him. The issue is the best and most appropriate way that can be achieved, taking into account, as I must, the child’s best interests. Clearly, there should be time spent, and with the issue of supervision, the dispute there is no longer as wide as it was previously. My view about the supervision is that there should be either the mother or her sister present for the first half-hour of the first two sessions of the six sessions which are under discussion.

12. The father still has an objection to the mother being present. I would agree with that objection if the mother was going to be present for the entire period, but if we are talking about an initial period, as we are, of half an hour, I do not consider that it would be inappropriate for the mother to be present for that half-hour. If the sister can be that is a preferable course, because the father is agreeing to that. However, I do not want to close off the option of the mother being present if the practical arrangements, which I propose to put in place, cannot work with the sister, and what I mean by that is that as far as I am concerned the handover should take place, at least on the first occasion, at the front gate to the Adelaide Zoo and that handover should take place at 10:00am this Sunday. As I say, either the mother or her sister should be present for the first half-hour of that handover on this occasion and on the second occasion.

13. In terms of the length of the sessions, I am sympathetic to the father’s position of wanting to introduce a six hour session, however, I have to be mindful of what has happened in the past and that the father has not yet had that length of time with the child and I consider that there should be a stepped process, such that on the first occasion, namely, this Sunday, there should be a three hour time period for the child to spend with the father and, then, on the second occasion that should increase to four hours and on the third occasion six hours and, then, the fourth, fifth and sixth occasion it should also be six hours.

14. The next question is whether each of those sessions should be on alternate weekends or each weekend. I am mindful of the travel costs of the mother, and in my view it should take place on two out of every three weekends. Thus, there should be a session this Sunday, a session the next Sunday and then a gap and then it is picked up again with two sessions in a row and then a gap and then, finally, two further sessions and then a gap.

15. In terms of travel costs, the father has offered to contribute $50 on each second occasion that he spends time with the child.

16. As to where the matter goes after that, as far as I am concerned the order of 13 August 2008, which has not been varied, should continue and looking at that order the next step in the process, pursuant to that order, after the six sessions of 10:00am to 4:00pm, which is really what I am addressing, is paragraph 3(c) which provides for time to be spent on each alternate weekend from 10:00am to 4:00pm on the Saturday and from 10:00am to 4:00pm on the Sunday, for a period of 12 weeks.  Nothing has been put to me which would indicate that that should change. Obviously everything is still dependent upon getting this exercise started, and that’s the concentration at the moment, but, as I say, as far as I am concerned, thereafter the order of 13 August 2008 should resume.

17. In terms of where the handover should be after the first occasion, it does not need to be at the zoo, and the proposals on the table from the parties are, from the father’s point of view, at a Hungry Jacks restaurant in the city or from the mother at a park at M. In my view there are more activities that can be undertaken from the city than from a park in M and particularly once the period of time becomes six hours, as opposed to the initial three and the second occasion of four hours. Thus I consider that handover should take place in the city on those occasions and at the place nominated by the father.

18. As to who conducts the handover, that is entirely up to the mother. I am not going to require the mother to conduct the handover. If she wants to involve her sister and thinks that is a better way of doing it, then that is open to her.

I certify that the preceding 18 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 14 January 2010.

Associate