Galbraith and Schwarz

[2007] FamCA 330

FAMILY COURT OF AUSTRALIA

GALBRAITH & SCHWARZ [2007] FamCA 330

FAMILY LAW - CHILDREN - With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: MR GALBRAITH

RESPONDENT:	MS SCHWARZ
INDEPENDENT CHILDREN’S LAWYER:	Mr Hearl

FILE NUMBER: SYF 4637 of 2000

DATE DELIVERED: 28 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 28 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR RESPONDENT:	In person
INDEPENDENT CHILDREN’S LAWYER:	Delaney Lawyers

Orders

1. The proceedings are adjourned to before Judicial Registrar Johnston at 12:00 noon on 24 April 2007.

1. Leave to the father to attend by telephone link rather than video (that is at his request) AND the Court noted that it is his expectation that that will allow him to take part from K Centre rather than being required to travel elsewhere.

1. The Court requested that the Department of Corrective Services make the father available for a telephone link from prison at 12:00 noon on 24 April 2007.

1. Any further documents on which any party seeks to rely are to be filed and served not later than 16 April 2007.

1. The parties, that is the father, the mother and stepbrother together with the child attend upon a family consultant at times and dates appointed by the Manager Child Dispute Services AND the Court requested that the Independent Children's Lawyer take part in that event.

IT IS FURTHER NOTED

1. The purpose of that mediation is to explore the practicability of the child being transported to visit the father by the stepbrother and to explore the mother’s application in effect that there be no further physical visits between the father and the child until further order.

AND IT IS FURTHER ORDERED

1. Leave is granted to any of the parties and to the Independent Children's Lawyer to restore the matter to the list on giving 48 hours’ notice to the Court and to the other parties and Independent Children's Lawyer.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4637 of 2006

MR GALBRAITH

Applicant

And

MS SCHWARZ

1^st Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a 10-year-old boy.  The matter was listed before Judicial Registrar Johnson and he has been required to sit interstate this week. The father is in gaol. On a previous occasion the Judicial Registrar noted that there was an informal agreement about the child seeing his father and the parties accommodating the boy's wishes in relation to that.  There was a foreshadowed family day when the father was held in the Sydney metropolitan area in about the middle of June last year and the matter was adjourned.  The adjournment was deferred for some reason that I am not aware of and the matter comes before me today. 

2. I am told that there was indeed time between the child and the father on that family day in mid-June and there was a subsequent occasion last year and, I am told, a time planned for around Christmas but that time did not go ahead. 

3. It transpires today that the mother now opposes the child spending any time with the father. The father hopes that in May 2008 he may have weekend release and he expects to be released entirely a year later. I understand that he is attempting to keep his relationship with his son, alive. He would say that the relationship was pretty solid because the child was living with him from a very young age up until his incarceration.  He expects that it may be that the child will want to come back and live with him when he is free. 

4. The child is represented. His representative says that there have been some problems because of perceptions the child has in relation to the treatment of his mother by the father and members of the father's family. However the representative does not think that perceptions are locked in stone and that the child may change his mind. Unfortunately there have been two telephone contact occasions when the child has not been willing to speak to the father.  The representative supports the pattern of arrangements that the parties had in place and that was foreshadowed in May last year whereby the child spends some time with the father. However, it transpires today that the mother is no longer willing to take part in those arrangements. There must have been some indication of that changed attitude in April last year because my colleague foreshadowed that in the event that there were problems – then the Court would consider entrusting a member of the father's family to undertake the responsibility of transporting the child to visit the father.

5. The father would like me to make an order today forcing the mother to take the child to see him.  Given that the matter is not one that I have any background information in, given the voluminous evidence filed in the case and given that my colleague who does know about the matter, foreshadowed on an earlier date what would  happen if the mother refused to provide this travel, in my view I should try and facilitate that foreshadowed approach. That approach requires that the child's lawyer and the Court be satisfied that there is a proper or sufficient relationship between the child and his stepbrother so that the stepbrother can take the child to see his father. There is also the issue of whether something has happened between the date that the matter was last in Court and today which would suggest that the child should not attend on the father.

6. The evidence on that point is confusing. The mother says that one of the reasons the boy does not want to go is because he was not allowed to hug his father on a previous visit. The first thing to be said about that is that it suggests a loving relationship between the father and the boy.  The father says there he was moved from one correctional facility to another, late last year and there was a glitch at the new facility whereby official comment was made preventing physical contact between himself and his son. The father understands that will not be a problem in the future.  The mother says the other problem is that the environment is unpleasant and strange.  The father says that there are lovely gardens and it is not so bad. 

7. Those are issues that I cannot determine today, but they would not seem to be insurmountable.

8. I adjourn these proceedings to the judicial duty list at 9.30 on 24 April 2007.  At the father’s request I give him leave to attend by telephone-link, rather than video link.  I note that it is his expectation that that will allow him to take part from K Facility rather than being required to have the inconvenience of travelling elsewhere.  I order that any further documents on which any party seeks to rely be filed and served not later than 16 April.  I order that the parties, that is, the father, the mother and stepbrother, together with the child attend upon a mediator at times and dates appointed by the director of mediation.  I request that the Independent Children's Lawyer take part in that event.  I note that the purpose of that mediation is to explore the practicability of the child being transported to visit the father by the stepbrother and to explore the mother's application in effect that there be no further physical visits between the father and the child until further order.  I give leave to any of the parties and the Independent Children's Lawyer to restore the proceedings to the list on giving 48 hours' notice to the Court and to the other party.  

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  20 April 2007

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