Frank & Matthews

[2007] FamCA 1110

FAMILY COURT OF AUSTRALIA

FRANK & MATTHEWS [2007] FamCA 1110

FAMILY LAW – PRACTICE AND PROCEDURE - Adjournment – family report ordered.

Family Law Act 1975 (Cth)

APPLICANT: Ms Frank 

RESPONDENT: Mr Matthews 

INDEPENDENT CHILDREN’S LAWYER: Samantha Ward

FILE NUMBER: MLC 7783 of 2007

DATE DELIVERED: 31 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 31 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.E. Whitchurch

SOLICITOR FOR THE APPLICANT: Harwood Andrews

COUNSEL FOR THE RESPONDENT: Mr Davis

SOLICITOR FOR THE RESPONDENT: Featherbys

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr Epstein

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Samantha Ward

Orders

1. That I grant leave to the father to make an oral application for order providing that he spend time with the child at the B Contact Centre in Geelong between now and a final hearing as frequently as fortnightly such time to include his partner.

2. I DIRECT that the Magellan Registrar cause a subpoenae to issue to the proper officer of Victoria Police to produce any VATE tapes involving the child born … May 2001 taken on 28 May 2007 or otherwise.

3. That the further hearing of all extant applications be adjourned before Justice Bennett and the Magellan Registrar on 12 October 2007 at 10am for inter alia, a determination of any interim application for the father to spend time with the child born … May 2001 at a contact centre. 

4. That the trial notice listing of this matter be conducted on 12 October 2007 immediately following the determination of the matter in court and in anticipation of the matter being including in the December 2007 sittings of Magellan List. 

5. That within 7 days the mother produce to the independent children’s lawyer (through her solicitor) the copy recording, as referred to by the mother in paragraph 65 of her affidavit sworn on 25 June 2007, for the purpose of the independent children’s lawyer obtaining two copies of the tape and providing one such copy to the practitioners for the father.

6. That the independent children’s lawyer return the copy recording to mother (through her practitioner) as soon as practicable.

7. That the parties do all acts and things reasonable necessary to facilitate the preparation of a family report for use in these proceedings:-

   (a)by Mr P “the expert”;

   (b)the cost of such assessment and report be borne equally between the parties;

   (c)the expert’s assessment to include:-

   (i)an evaluation of competing applications for parenting orders;

   (ii)observed interaction between the child born … May 2001, and each of the parties to the proceeding (unless the expert considers that the welfare of the child dictates otherwise);

   (iii)an assessment of the capacity of each party to provide for the physical and emotional needs of the child;

   (iv)an assessment of the capacity of each party to co operative with each other and the attitude of each party to the other party and power and future capacity of each parent to implement an arrangement for equal, substantial or significant time with each parent;

   (v)the impact on the child of spending equal, substantial or significant time with each parent;

   (vi)any other matter which in the opinion of the expert ought to be drawn to the attention of the court in the report;

   Such report to be released to the parties on or before 26 November 2007 and, thereafter, the independent children’s lawyer cause a copy of the report to be filed with the court under cover of a single page affidavit merely identifying the order pursuant to which the report is prepared.

8. That the mother and the father forthwith do acts and things necessary and sign all documents as required to have the family accepted into the B Contact Centre at Geelong to facilitate the father spending time with the child on a face to face basis once a fortnight, supervised, providing that no such time commence prior to the matter returning to court on 12 October 2007 unless otherwise agreed to by the parties.

9. That for the purpose of the aforementioned application the father obtain all necessary documents and send them to the mother (via their respective solicitors) and these forms be duly completed by her and returned promptly to the father’s solicitors.

10. That in anticipation of the hearing on 12 October 2007:

    (a)By not later than 17 September 2007 the mother file and serve and affidavit evidence upon which she relies in opposition to the supervised time sought by the father;

    (b)Without limiting the generality of the foregoing paragraph in relation to the mother’s material the mother file and serve an affidavit by Ms M, counsellor in relation to Ms M attendances upon, assessments and conclusions in relation the child and do so 17 September 2007;

    (c)By not later than 1 October 2007 the father file and serve any affidavit material upon which he proposes to rely in relation to a determination of his interim application to spend time with the child on a supervised basis.

11. That my reasons for decision given this day be transcribed and when transcribed a copy be made available to each of the parties. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7783 of 2007

MS FRANK

Applicant

And

MR MATTHEWS  

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. The matter comes before me in the Magellan duty list.  I have just made orders which adjourn the matter to 12 October 2007 for the purpose of the father pressing his application to spend time with the child born … May 2001 between now and a final hearing.  

2. The parties have indicated that they do not require reasons.  However, I wish to record what appears to be the chronology of events in relation to the involvement of the counsellor, Ms M.  Neither party has sworn any affidavit material for this hearing and the information which I have has come from submissions made from the bar table. 

3. It is contended on behalf of the father that by letter dated 22 June 2007, that he sought an update as to what developments, including counselling, had occurred for the child in relation to the allegations of sexual abuse which are denied by him.  I am advised that by letter dated 25 June 2007 which was tendered and is marked exhibit “F1” that certain details were given which did not include a reference to any counselling undertaken by the child at the behest of the mother or otherwise. 

4. On 18 July 2007 the mother completed a questionnaire provided to her by the independent children's lawyer and under the section which seeks details of counselling which the child has had in the last two years, the mother referred to “counselling to talk about her feelings about her father” as occurring with Ms M.  Those responses were provided to the independent children's lawyer in early August 2007. 

5. In submissions made by Mr Whitchurch who appears for the mother, he provided the following information about the counselling by Ms M of the child: the counselling commenced on 18 June 2006, organised by the mother on recommendation from Barwon CASA.  The child had three sessions with Ms M prior to there being obtained a grant under the VOCAT program for 10 free sessions. 

6. Ms M saw the child on a weekly basis for seven or eight occasions commencing as indicated on 18 June 2007.  Her sessions are now less frequent.  Not all sessions paid for have been face-to-face assessments of the child or interviews of the child; some have been spent by Ms M viewing the VATE tape and perusing documents.  Mr Whitchurch said that Ms M is in the process of preparing a report which will be provided to the organisation. 

7. It seems to me essential that some report be provided by Ms M which sets out in detail the nature of her interviews with the child and the content of those interviews. 

8. It is essential that the material be available to Mr P, who last saw the child on 1 May 2007, and it should also be available for the next hearing at which I will again consider the child spending time with the father on an interim basis in the terms of his oral application of which the mother now has notice. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate 

Date:  20 September 2007