Gould & Lawson
[2008] FMCAfam 559
•21 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GOULD & LAWSON | [2008] FMCAfam 559 |
| FAMILY LAW – Contact – residence – best interests of the children – interim orders. |
| Applicant: | MR GOULD |
| Respondent: | MS LAWSON |
| File Number: | CRC 243 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 May 2008 |
| Date of Last Submission: | 21 May 2008 |
| Delivered at: | Coffs Harbour |
| Delivered on: | 21 May 2008 |
REPRESENTATION
| Solicitors for the Applicant: | McNeilly Lawyers |
| Solicitors for the Respondent: | No Appearance |
ORDERS
Orders 1-6 made on the 20th of November 2007are vacated.
Pursuant to section 65DA(2) of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.
The mother is to file and serve a notice of address for service within
14 days.Parties are to file and serve any further affidavit material upon which they seek to rely by 5 September 2008.
The matter is listed for final hearing during the Coffs Harbour circuit of the Federal Magistrates Court the week of the 22 September 2008 before Federal Magistrate Scarlett.
Pursuant to section 62G of the Family Law Act 1975 I require an update of the Family Report done on 21 November 2007. The parties and children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator the Federal Magistrates Court of Australia on a date and time to be advised for the purpose of the preparation of a family report and such report to be released by the 22 September 2008.
UNTIL FURTHER ORDER:
The parents share equal parental responsibility for the children [A] born in 1992, [B] born in 1994 and [C] born in 1996.
The children [A] and [C] live with the father at all times except for those set out in Order 3 below and in addition:
2.1 On Father’s Day from 9:00am to 5:00pm when these times fall on days the children are spending time with mother.
The children spend time with the mother as agreed between the parties but failing agreement as follows:
3.1 For the first week of the NSW school terms 1,2 and 3 school holiday period commencing at 5pm on the first Saturday and concluding at 5pm on the middle Saturday:
3.2 For a period of two weeks during the NSW Christmas school holiday period commencing at 5pm on 1 January to 5pm on 14 January.
For the purpose of facilitating time referred to in Orders 3.1 and 3.2 above, the mother will collect the children from the father’s residence at the commencement of time and will deliver the children to the father’s residence at the conclusion of time.
The mother will communicate with the children by telephone every Monday from 4pm to 5:30pm either the mother or the children will initiate the call.
The child [B] live with the mother at all times except for those set out in Order 7 below and in addition:
6.1 On Mother’s Day from 9:00am to 5:00pm when this times falls on a day the child is spending time with the father.
The child spend time with the father as agreed between the parties, but failing agreement as follows:
7.1 For the second week of the NSW terms 1,2 and 3 school holiday period commencing at 5pm on the middle Saturday and concluding at 5pm on the last Saturday;
7.2 During the NSW Christmas school holiday period from 5pm on the first Saturday to 5pm on 1 January.
For the purpose of facilitating time referred to in Orders 7.1 and 7.2 above, the mother will deliver the child to the father’s residence a the commencement of time and the father will deliver the child to the mother’s residence at the conclusion of time.
Each party will advise the other in writing at least 7 days in advance of all changes in residence including full details of the new address and residential telephone numbers.
The father will provide an authority to each of the children’s schools to provide the mother will all school reports, school photograph order forms, correspondence, circulars and information relating to parent teacher interviews.
The mother will provide an authority to each of the children’s schools to provide the mother will all school reports, school photograph order forms, correspondence, circulars and information relating to parent teacher interviews.
Each party will advise the other of any child requiring emergency medical treatment and/or hospitalisation.
Each party is restrained from making critical or derogatory remarks in relation to the other party (including partners) or family in the presence or hearing of the children.
IT IS NOTED that publication of this judgment under the pseudonym Gould & Lawson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT COFFS HARBOUR |
CRC 243 of 2007
| MR GOULD |
Applicant
And
| MS LAWSON |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The proceeding before the Court today is the hearing of an amended application filed on behalf of the applicant father. The application relates to the three children of the parties relationship; [A] who was born
in 1992, [B] who was born in 1994 and [C] who was born in 1996.The father seeks orders that the eldest and the youngest of the children, [A] and [C], continue to live with him and that those children spend time with their mother during the school holiday period.
He seeks orders that the child [B] should live with the mother and should spend time with him during the school holiday periods.
There were orders made by consent and until further order before Donald FM on 20 November 2007 setting out that [A] and [C] should live with the father, [B] should live with the mother, and that [A] and [C] should spend alternate weekends in [X] with the mother and [B] should spend alternate weekends in [X] with the father.
There has been a family report prepared dated 21 November 2007. It is a comprehensive report and contains recommendations, amongst other things, that both [B] and [C] should live with the mother and spend time with the father during the school holidays and that [A] should spend time with the mother during the school holidays. The report appears to me to need updating prior to a final hearing.
I propose to hear the matter on a final basis during the week when I am conducting hearings in Coffs Harbour, which is the week commencing Monday 22 September.
It would clearly be in the interests of the parties for an updated report to be prepared in order to deal with the effluxion of time between the time the report was prepared and the time the hearing will take place.
There are some disturbing features about this matter relating to the child [B]. She was born in 1994 and is now 14 years of age. The father in his affidavit of 19 May 2008 relates to having received a telephone call from one Mr M, the Aboriginal Liaison Officer at
[Z] Police Station, expressing some concerns for the child's safety whilst living with the mother. The father goes on to depose that he had conversations with the mother in which she indicated that she would be returning [B] to the father's care and he describes having later spoke to [B] in [X] and how some arrangements were made for [B] to go to live with him but [B] would not go with him and then left the scene with her mother. The father has deposed that [B] later jumped out of the mother's car and ran away.
The father has expressed concerns that the child, [B], who had been staying with friends and had been drinking alcohol and he, the father, made a notification to the Department of Community Services about the child. The father expressed concern in his affidavit that [B] was staying in a home where various young people under the age of 18 were involved in drug and alcohol abuse. He deposed that he has been unable to obtain assistance from the Department of Community Services and that the mother has not collected the child, [B]. He deposed that he has filed a Notice of Risk of Abuse with the Federal Magistrates Court in Coffs Harbour and notwithstanding that the Department has chosen not to intervene.
In his affidavit he said that he has had no communication with the mother since 9 April and since then he said that he has received a telephone call from [B] saying that she was staying with her maternal grandmother and would be attending school in [Y]. He says that he remains concerned about the child's safety and her welfare. He is aware that the child does not want to live with him but he does not believe that it is in her interests to return to [X] because when she was in [X] she was at risk. He believes that the child should have counselling and that it would be preferable for the child to live with her mother. It would certainly be preferable rather than living in the current circumstances.
The mother has not attended Court today and it appears that she is in the process of changing her legal representation. The Court has received an email from Matthew Lindeman, solicitor, indicating that he had previously acted for the mother but his instructions had been withdrawn. The mother had given some instructions to the Aboriginal Legal Service at [X] but he now advises the Court that he has been asked by the mother if he would accept her instructions so that the file can be transferred from the Aboriginal Legal Service to him. He indicates that he is willing to accept those instructions but was unable to attend Court today. His submission is that the application should be listed for final hearing and submits that an appropriate interim order would state that the child was to live with a maternal aunt called Ms R in [Y] until further order.
The father opposes that submission and his solicitor, Ms McDonald, has pointed out that the aunt, the proposed carer, is only 19 years of age. As I have no other information about the aunt I would be most reluctant to make an order that this child should spend any period of time living with this aunt.
It is clearly a matter where I need an updated family report. It is clearly a matter where some workable orders need to be put in place between now and the final hearing.
I am informed by Ms McDonald that the previous orders relating to the mother spending time with the children, [A] and [C], have not been complied with, not she tells me through any want of willingness on the father's part but rather from a want of the mother taking up the arrangements for contact, to use the old phrase. Accordingly, it is submitted that those orders made by consent on 20 November are no longer operative and that orders should provide that the mother should spend time with the children during the school holidays and on Mothers Day.
I am mindful of the fact that the Court should be guided by what is in the best interests of the children. There are, in this case, a number of disturbing and worrying concerns relating principally to the middle child, [B], although it is a matter of some regret that he mother appears not to be spending time with the other two children who are living with the father.
I have read the family report which, in November last year, recommended that both of the girls should in fact reside with the mother. I am certainly not prepared to make any order on an interim basis that [C], who is currently residing with the father, should go to live with the mother and I can indicate that I would require significant evidence in order to persuade me that such a change in arrangements was in the best interests of that child.
This is a matter that needs to be made ready for hearing and needs to be heard here in Coffs Harbour during the sittings in September. I will allow the parties liberty to apply on 48 hours notice because the matter will remain in my docket and it is my firm intention for this matter to proceed to hearing so that the issues relating to these children can be properly addressed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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