HAMILTON & LOGAN

[2014] FamCA 981

FAMILY COURT OF AUSTRALIA

HAMILTON & LOGAN [2014] FamCA 981

FAMILY LAW - PARENTING

APPLICANT: Ms Hamilton

RESPONDENT: Mr Logan

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Taylor Splatt & Partners

FILE NUMBER: MLC 3521 of 2011

DATE DELIVERED: 15 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 15 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hamilton in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Brenton

SOLICITOR FOR THE RESPONDENT: GA Black & Co

COUNSEL FOR THE ICL Dr Alexander

SOLICITOR FOR THE ICL Taylor Splatt & Partners

Orders

1. That all previous orders requiring any time spent by the child F born … 2005 with the mother to be supervised be discharged.

UNTIL FURTHER ORDER

1. That the child spend time with the mother as follows:

   (i)From 10.00am Saturday 16 August 2014 to before school Monday morning on 18 August 2014;

   (ii)Each alternate weekend thereafter from Friday after school to Monday before school commencing Friday 29 August 2014, such times to continue during Term 3 school holidays;

   (iii)Other times as agreed between the parties in writing.

2. That unless otherwise agreed in writing, all changeover take place at the child’s school

3. That pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

4. That the Registrar of the Family Court of Australia at Melbourne forward a letter to the Chairman of the Victorian Bar Family Law Pro Bono Scheme requesting that the mother, Ms Hamilton be represented at the final hearing of this matter listed on 8 December 2014, noted as a three-day matter.

IT IS NOTED

A.It is intended that the child spend Father's Day weekend with the father as Father's Day is on Sunday 7 September 2014.

B.It is intended that the child spend her birthday weekend with the mother.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3521 of 2011

Ms Hamilton

Applicant

And

Mr Logan

Respondent

REASONS FOR JUDGMENT

1. Today is a mention hearing in what has become a long-running matter before me in which the parties have competing applications with respect to financial matters, but also in respect of care arrangements for their child F, who is aged almost nine years.  the child is a child with special needs.  She is autistic and currently attends the C School. 

2. The proceedings were originally listed for a final hearing before me in April 2014.  On the first day of that hearing the father, through his counsel, raised significant concerns as to the mother’s emotional stability.  He raised concerns as to her state of health.  He raised concerns that the mother, because of her state of health, posed a potential risk to the child.  It was his evidence that the mother had threatened suicide.   

3. Submissions were made on that occasion by both the father and the Independent Children’s Lawyer.  The Independent Children’s Lawyer that day made an application to adjourn the proceedings to seek a further assessment of the mother, and also sought a change of care arrangement such that the child live with the father, and that the mother have only supervised time with the child, pending further investigation.  On hearing submissions, I did make interim orders in terms sought by the Independent Children’s Lawyer.

4. What has occurred since that time is that firstly, the mother has re-attended upon Ms H, a psychologist and counsellor who has provided therapeutic support for the mother.  Ms H has provided a report dated 15 June 2014 in which she has detailed her engagement with the mother and provided an assessment that from her perspective, she does not believe that the mother currently poses a risk to the child.  She notes that the mother has demonstrated an ability to manage her distress and to seek appropriate supports as required.  She notes that the mother would continue to benefit from continuing to work on her insight and her reflective capacity regarding the consequences of her behaviours.  She notes that the mother regularly attends her medical appointments and self-refers when required.

5. In addition to that report, the parties have a Family Report prepared by Ms B, Family Consultant, which has been released this day.  Ms B has recently interviewed the parties and the child and has observed the mother with the child.  Ms B’s observations as noted in that report are that the child has a close attachment to her mother, and indeed the observations of the child’s engagement with the mother were extremely positive.  At the conclusion of that report, Ms B makes a series of recommendations including the recommendation that the child have time with the mother on an alternate weekend basis.  Ms B does not make any recommendations as to the need for supervision.  

6. Today, the Independent Children’s Lawyer asks the Court to make orders which provide for a restoration of the mother having unsupervised time with the child on an alternate weekend basis.   The orders sought by the Independent Children’s Lawyer are substantially in line with the recommendations of the Family Consultant.  They are not opposed by the father.  Counsel representing the father today confirms that the father’s concerns as to the mother’s behaviour have largely been alleviated and that in recent times, he has not experienced what he describes as “harassment”.  There have been no further concerning episodes that he raises in opposition to the orders sought by the Independent Children’s Lawyer.  Further, he indicates that he has not received any concerning text messages from the mother, as he had historically.

7. The mother attended Court this morning.  She presented before me but ultimately, whilst the matter was stood down in the course of discussions between the mother and the lawyers representing the father and the Independent Children’s Lawyer, saw fit to leave the Court.  She did convey her position to counsel for the Independent Children’s Lawyer.  It is her stated position to the Independent Children’s Lawyer that she seeks a week-about arrangement.  I am not inclined to make an order in those terms today, particularly in circumstances where this is an interim hearing, the evidence is untested and that position is not supported by the ICL. 

8. I have had the benefit of reading the reports of Ms H and also of Ms B.  I am satisfied that the interim orders proposed by the Independent Children’s Lawyer are in the child’s best interests.  They take into account the relationship that she has with each of her parents.  They take into account the need for the child to have a meaningful relationship with her parents, pending the final hearing.

9. In considering parenting issues I must have regard to the objects of the Family Law Act as set out in s 60B.  The paramount consideration to be taken into account is the children’s best interests (s 60CA).  In determining the arrangements in the children’s best interests, I must take into account the primary and additional considerations set out in s 60CC of the Act.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 15 August 2014.

Associate:

Date:  15 August 2014