Gare and Scander

[2009] FamCA 1130

FAMILY COURT OF AUSTRALIA

GARE & SCANDER [2009] FamCA 1130

FAMILY LAW  -  CHILDREN  -  Magellan  -  interim parenting orders

Family Law Act 1975 (Cth)

FATHER: Mr Gare

MOTHER: Ms Scander

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2434 of 2009

DATE DELIVERED: 6 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 6 November 2009

REPRESENTATION

COUNSEL FOR THE FATHER  Ms. Maramis

SOLICITOR FOR THE FATHER: Denise A. Dwyer

COUNSEL FOR THE MOTHER: Ms. McCreadie

SOLICITOR FOR THE MOTHER: Guthrie & Associates

INDEPENDENT CHILDREN’S LAWYER Cathleen Corridon

Orders

1. That until further order the father spend time with the children X born … March, 2005 and Y born … March, 2005 as follows :

   (a)each Sunday from 10:00 am. until 4:00 pm., commencing on Sunday 15 November, 2009;

   (b)each Wednesday from 4:00 pm. until 6:30 pm., commencing on 11 November, 2009 save on Wednesday 23 December, 2009, 30 December, 2009 and 6 January, 2010, when the time shall be from 10:00 am. until 4:00 pm.;

   (c)from 10:00 am. until 4:00 pm. on 26 December, 2009;  and

   (d)at such other times as may be agreed between the parties. 

2. That changeovers take place outside the maternal grandmother’s shop, save for occasions when time commences at 4:00 pm. on Wednesday, when the father shall collect the children from childcare. 

IT IS FURTHER ORDERED BY CONSENT

1. That until further order the mother not consume alcohol or illegal drugs when with the children or be affected by alcohol or illegal drugs when with the children. 

2. That within 24 hours of receipt of a request by the independent children’s lawyer the mother undergo a supervised drug and alcohol urine test and produce the results to the independent children’s lawyer forthwith. 

3. That until further order neither the mother nor the father discuss the proceedings or permit any other person to discuss the proceedings with the children or in the presence of the children, save to explain to the children the time they are to spend with each of them. 

4. That until further order the parents inform each other of any significant medical condition or treatment of the children while in their respective care and of any other significant matters pertaining to the children’s welfare. 

5. That until further order the parties each shall authorise any medical or other professional involved in the children’s care and welfare to provide information to the other parent. 

6. That until further order each parent be at liberty to attend all day-care, kindergarten and school functions and extra-curricular activities concerning the children from time to time  PROVIDED THAT  the father shall provide the mother with at least 48 hours notice by SMS message his intention to attend if the event does not fall during a period the children are in her care. 

7. That until further order the mother authorise the children’s day-care, kindergarten or school to provide to the father a copy of all reports, an order form for each school photograph and newsletters routinely provided to parents. 

8. That until further order both parties be restrained from travelling overseas or interstate with the children save pursuant to orders of the court or with the prior written consent of the other party, and a party who intends to travel shall provide the other party with a detailed itinerary and contact details for the duration of the proposed travel in writing, no less than fourteen days prior to the intended departure date. 

9. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released before 26 February, 2010.

10. That the parties attend a Trial Notice Listing with the Magellan Registrar on 10 March, 2010 at 3:15 pm.

11. That pursuant to s.62B and s.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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2434 of 2004

MR GARE

Applicant

And

MS SCANDER

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter commenced when the father filed an application in the Federal Magistrates’ Court at Dandenong on 29 January, 2009. The parties had separated some years earlier. They are parents to twins, X and Y, born in March 2005, who will be five next March.  Since their parents separated the children have lived with their mother.  Prior to these proceedings, no parenting orders were in place. 

2. The mother has a child from a prior relationship, J, who was born in August, 2002.  She lives with the mother and sees her father. The mother re-partnered after her separation from the father and has had a second set of twins with Mr M;  A and B were born in March, 2009.  

3. When the father filed his application in the Federal Magistrates Court on 29 July, 2009, he sought that the children live with the mother and spend time with him on alternate weekends;  from after-school care Friday to 5:00 pm. Saturday in the other week;  for half of school holidays and on special occasions.  He made a number of allegations against the mother, particularly relating to longstanding use and abuse of alcohol and drugs.  The concerns he had then were apparently not sufficient for him to seek that the children live with him;  it was his application that they continue to live with her.  The father’s evidence was that his time with the children stopped when allegations of sexual abuse were made against him. 

4. The mother filed a response on 28 August, together with a Form 4 notice of child abuse.  She sought sole parental responsibility, that the children live with her and that the father’s application be otherwise dismissed. She alleged in the notice of child abuse that the father had involved Y in sexual activity. She also made a number of other allegations, complained of a lack of knowledge about his current partner, and criticized other aspects of his behaviour, including allegations about pornographic DVDs and other matters.

5. The matter came before Turner FM on 7 September, when it was transferred to this court for inclusion in the Magellan list.  The parties at that time agreed, as I read the orders, to complete the necessary forms for supervised time at GordonCare.  In September, the Magellan Registrar in this court made orders which led to production of the DHS file and a report from the Department. The DHS report outlines four prior notifications.  Some of the notifications related to the mother’s alleged drug and alcohol use and her care of the children.  One related to the alleged sex abuse.

6. Interviews were conducted by the Sexual Offences Criminal Investigation team.  Y was referred to CASA for counseling. She made no disclosures to workers at CASA.  She is still a very little girl.  A number of protective concerns were raised by DHS workers about their observations when they went to the mother’s home, unannounced. They were also concerned about violence between the mother and her current partner. 

7. Initially, today, the parties agreed on some interim orders.  However, it seems, from the father’s perspective, that the agreement about his time with the children was premised on there being another interim hearing in about a month. 

8. That is not the way this list works.  I do not mean that another interim application for time will not be considered, if there is relevant evidence to support it.  However, the point of this list is that resources are put into cases upfront;  it is not to allow cases to limp from hearing to hearing to hearing, with consequent damage to the children who are involved in the litigation.  The court must focus on the best interests of children, not their parents’ wishes or desires. 

9. The parties had agreed the father should have daytime unsupervised contact on each Sunday from 10:00 am. to 4:00 pm.  The mother is still concerned about the allegations and concerned about lengthier contact, or overnight contact. 

10. Earlier, the parties proposed time each Wednesday from 4:00 pm. to 6.30 pm., and at such other times as agreed.  The father would like extended time on Wednesdays, when he is on holidays. He would also like, ideally, some overnight time;  he hoped that could be considered at another interim hearing.  His counsel proposed additional time on each Saturday. 

11. If orders were made as proposed by the father, two not yet five year old children would spend the bulk of their waking hours on Saturday and the bulk of their waking hours on Sunday with him.  Whilst it is true that they spend most of the rest of the week with their mother when not in some form of childcare, and that she has other onerous parenting obligations, there are many things that parents and children do at weekends which are not available at other times of the week.     

12. I am satisfied on the evidence before the court, and taking into account the initial agreement (while bearing in mind the reasons the father was prepared to agree), that orders should provide for contact on each Sunday from 10 am to 4 pm, commencing on 15 November.

13. I have heard what counsel for the mother said.  The mother is in court and she has heard what her counsel said.  I am sure her counsel will speak to her about the reliance the court is required by law to place on the importance of one parent facilitating the other parent’s contact with a child, consistent with that child’s best interests. 

14. I will make other orders by consent, as set out in the Minute tendered.  A family report will be prepared and released by late February;  there will be a trial notice listing the following month. 

15. This court’s order will take precedence over the existing intervention order.  Insofar as that order precludes contact between the father and the twins, it will not apply, but only to the extent necessary to comply with the orders made by me today.  For the record, I note that the order I make is inconsistent with an existing intervention order.  The reason for making an inconsistent order is that the court is satisfied that it is in the best interests of the children to do so, and that the mother herself does not oppose the father spending unsupervised time with the children.  I make it clear to both parties that the intervention order otherwise remains on foot in all respects, save as is necessary to comply with these orders.  

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

Dated the         day of         2009.

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