Guischard and Hewson

[2008] FamCA 1208

FAMILY COURT OF AUSTRALIA

GUISCHARD & HEWSON [2008] FamCA 1208

FAMILY LAW – CHILDREN – Best interests – interim orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Guischard

RESPONDENT: Ms Hewson

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: SYF 4049 of 2006

DATE DELIVERED: 18 March 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 18 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

Orders

1. The orders of 6 December 2006 be varied to provide that the child spend unsupervised time with the father each Tuesday and Thursday between 8.30am to 4.30pm unless the contact changeover point is C Contact Centre and then the time will be from 9:30am to 4:30pm.

2. The Independent Children’s Lawyer is to forthwith make enquiries with each of the sites recommended by the mother as a contact changeover point for the purpose of the child spending time with her father and in the event that he finds a satisfactory site or sites nominate to the parties where the site is together with instructions about the time for their arrivals and departures and other specific they need to comply with.

3. Unless and until the Independent Children’s Lawyer nominates an alternate contact changeover point all changeover is to occur at C Contact Service.

4. The ICL is to provide a copy of these orders to the C Contact Service and to any other contact changeover site nominated by him pursuant to these Orders.

5. If C Contact Service is unable to facilitate a contact changeover on a Tuesday, then the Independent Children’s Lawyer is to notify each party and the days the child will spend with her father will be either Monday and Wednesday together with Thursday each week, with the Independent Children’s Lawyer to nominate in writing either Monday or Wednesday as a day for the child to spend with her father.

I NOTE the mother’s prior solicitors have filed a notice of ceasing of ceasing to act and she will now write to Legal Aid to engage another lawyer. She envisages being able to make that application to Legal Aid within fourteen (14) days.

1. I grant leave to each party to re-list the matter before me on short notice by application via email to the Case Coordinator setting out the purpose of the requested re-listing.

2. The father is to file and serve an affidavit which only sets out details of the accommodation he has available for the child and annexes photographs of that accommodation both internal and external of the site. Such an affidavit to be filed and served by 2 May 2008.

3. Neither party is to file any further application or affidavit without first obtaining leave from me to do so.

4. The matter is adjourned to 9 May 2008 at 9.30am for further mention.

I NOTE each of the parties agree that in the event of the contact changeover point being a site other than the C Contact Service, each of the parties will pay fees required of them by the authority conducting business at the site for the purpose of facilitating changeover.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4049 of 2006

MR GUISCHARD

Applicant

And

MS HEWSON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER 

REASONS FOR JUDGMENT

1. Before the Court today are proceedings relating to the time that the parties’ daughter, born in November 2005, spends with her father.  On 6 December 2006 orders were made which provided for the child to spend time with her father each Wednesday and Thursday between 11 am and 1 pm at the C Contact Service at Harris Park.  Clearly that time was supervised.

2. On 19 November 2007 I varied the orders of 6 December and earlier orders made on 5 February 2007 to provide that the father spend time with the child at the C Contact Service each Thursday from 11 am to 2 pm and each Saturday from 9.30 am to 12.30 pm.  On 24 February 2008, Dr Q, the single expert in this case, signed her report and that report has been made available to the parties.  The matter has been listed before me since that time. However, this is the first occasion that I have had an opportunity to go through the report and hear submissions from the parties in relation to further interim orders that should be made.

3. The report is extensive; it is some 47 pages in length.  It concludes with a recommendation by Dr Q for a gradually increasing contact between the child and her father, moving to overnight contact within a four week period.  It recommends that the time for the child with her father be unsupervised.

4. The mother has been represented by a solicitor until this month, and yesterday on 17 March 2008  her former solicitor, Turner Freeman Lawyers, filed a notice of ceasing to act signed on 14 March 2008.  The mother is in the process of making an application to the Legal Aid Office in New South Wales for funding to engage another lawyer to act on her behalf in relation to these proceedings.  I intend to give her an opportunity to proceed with that before I make any further directions about the final hearing in this case.

5. The Independent Children's Lawyer has recommended that there be a change to the current orders to provide for the child to have two days each week with her father between the hours of 9 am and 5 pm.  The mother seeks that those two days be Tuesday and Thursday to facilitate, amongst other things, family activities on Sundays and also to facilitate the prospect of additional employment.  The father seeks that one of these days be on a weekend and one be during the week.  He seeks a weekend day for appropriate reasons;   that is, that the activities within his family and within his life are different on a Sunday than they are during the week. If he had the child with him on the weekend it would mean that he would have an opportunity to introduce her to friends and their children, which may not be available during the week.

6. Currently the orders provide that the contact is supervised at the C Contact Service.  That service can facilitate changeovers for the parties between 9.30 am and 4.30 pm. Some days have greater capacity to accommodate changeovers than others.  Tuesday is a day which may be difficult for the C Contact Service.

7. It is important to progress this matter.  It is important that the child have the opportunity to expand her relationship with her father.  The daytime only contact between the child and her father is significantly less than that which is ultimately recommended by the Court's expert.  It seems to me to be reasonable at this stage to facilitate some unsupervised time for the child with her father as, amongst other things, a testing ground for the future.  Likewise, it would seem to me to be perhaps not in the child’s best interests to quickly transition her from supervised time at the C Contact Service to overnight unsupervised time with her father.  There are still question marks over the suitability of the father's accommodation.  I propose to make some directions about that.

8. The mother has recommended a number of different sites as alternate changeover sites which would be more convenient to the parties and, more particularly, would subject the child to less travel.  Each of the sites that she has recommended, on the face of them, appear to be appropriate places.  However, from experience, these centres do have strict rules, and whether or not they involve themselves in changeover needs to be investigated and whether or not they would involve themselves in the changeover in this family needs to be investigated.  I propose to charge the Independent Children's Lawyer with that responsibility.

9. Given that there is now a very substantial change in the arrangements for the child, it is appropriate that each of the parties has the opportunity to re-list the matter before me on short notice.  I propose to provide for that on the basis that the method for doing so will be an application by email to the case coordinator, who will then bring it to my attention.  It is also not advantageous in this case, particularly so far as the child is concerned, for there to be a plethora of further applications and affidavits.  I propose, therefore, to forbid that course of action without first obtaining my leave.  Neither of the parties will be prejudiced in this manner because I have made available for them the ability to re-list the matter on short notice before me in order to raise their concerns and to make application for what they propose to do.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  26 September 2008