GISSING & CLYDE

[2016] FamCA 642

FAMILY COURT OF AUSTRALIA

GISSING & CLYDE [2016] FamCA 642

FAMILY LAW – Procedural orders — children’s matter — reportable assessment to focus on parental capacity.

APPLICANT: Ms Gissing

RESPONDENT: Mr Clyde

FILE NUMBER: MLC 1605 of 2016

DATE DELIVERED: 15 July 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 15 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bartfeld QC

SOLICITOR FOR THE RESPONDENT: CE Family Lawyers

Orders

BY CONSENT IT IS ORDERED THAT

1.That each party do all things required to enable an assessment and report to be completed by Mr B as to the best interests of the children C born … 2007 and D born … 2010 as soon as practicable (noting that Mr B has an appointment for the parties on 25 October 2016) and at their equally shared cost.   

2.That these proceedings be adjourned to the Judicial Duty List at 10am on 9 November 2016.

IT IS FURTHER ORDERED THAT:

3.That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children C born … 2007 and D born … 2010 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the children by the next return date and, in the meantime to:-

a)      request of the report writer, Mr B, that she meet with the children during his assessment (if convenient to him);

b)      provide Mr B with a copy of all court documents since 6 July 2016 (inclusive of intervention orders);

c)      confirm with Mr B and the father’s treating psychologist, Mr E, that they can confer with one another; and

d)      provide Mr B with a copy of the reasons for decision this day.

4.That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

5.That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

6.That pursuant to Sections 65DA(2) and 62B the particulars and 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 Fact Sheet attached hereto and those particulars are included in these orders.

IT IS DIRECTED:

7.That my reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

8.The intervention order of the Magistrates Court of Victoria in Case Nr:... be marked Exhibit “A” and remain on the Court file.

9.The minute of consent orders be marked Exhibit “B” and remain on the Court file.

AND THE COURT NOTES

The parties have agreed that until the adjourned hearing the children will live with the Mother and spend time with the Father:

a)      each alternate weekend from the conclusion of  school on Friday until the commencement of school on Monday commencing this day;

b)      each alternate Thursday from the conclusion of school until the commencement of school the following day commencing 21 July 2016;

c)      each alternate Monday from the conclusion of school until the commencement of school the following day commencing 25 July 2016;

d)      such further or different times as the parties may agree in writing;

e)      the first half of the September school holidays concluding at 5.00pm Saturday 24 September 2016 when the Husband shall return the children to the Wife at the McDonalds Restaurant F Street, Suburb G. 

The parties have further agreed that:

f)      the Husband may attend the children's school at all events and functions parents usually attend and to communicate with the school; and

g)      on Monday 3 October 2016 the Wife will collect the children from school and then deliver the children to the Husband at 5.30pm at the McDonalds Restaurant, F Street, Suburb G.

AND IT IS FURTHER NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gissing & Clyde has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1605 of 2016

Ms Gissing

Applicant

And

Mr Clyde

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. The matter comes before me in the duty list.

2. The parties have managed to resolve today’s dispute in the terms of the minutes which I have made as orders.

3. Having read the material, I was concerned about the allegations in the material in particular in relation to family violence. I have, however, made orders sought by consent, based on respect for the common ground that has been reached by the parents and an appreciation that they will regard themselves as under some significant scrutiny between now and a return date.

4. The Order provides for a continuity of arrangements for the children which, in some sense, will be a benefit to the children.

5. Of course, the affidavit material that I have read has not been tested and having regard to some very recent material, which I have not read in its entirety.

6. The parties have admirably decided to get a family report from Mr B, Psychologist.

7. Mr B’s reports are informative. The reports are often used as a settlement tool in proceedings such as these. However, what the court will be most assisted by in the serious circumstances of this case is a report which deals with the best outcome for the children. This may not necessarily be the best outcome for one or both of the parties or an outcome to which the parties would be themselves disposed to agree upon.

8. The report should be a frank and candid assessment of the parenting capacity and incapacity of each parent. It should map out the best way forward for the children which may, in the circumstances of this case, not be the best way forward for both of the parents. I think Mr B will understand that the court would be assisted by his expert evidence in relation to the parents and the children’s childhood development. I expect that the report will expand the knowledge and understanding of the court of the parents’ individual characteristics and the extent to which their respective perspectives on the world, their children and each other reflect how either or both of them contribute to and react to the problems which he/she perceives in the other. Most importantly, the report will provide evidence which will enable the parties, the independent children’s lawyer and the court to discern parenting arrangements in which the children are physically and emotionally safe.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 15 July 2016.

Legal Associate:

Date: 8 August 2016