Hamley and Hamley (No. 2)

[2007] FamCA 1066

FAMILY COURT OF AUSTRALIA

HAMLEY & HAMLEY (NO. 2) [2007] FamCA 1066

FAMILY LAW – PRACTICE AND PROCEDURE – Parenting proceedings – Adjournment  

Family Law Act 1975 (Cth)

APPLICANT: Mr Hamley

RESPONDENT: Mrs Hamley

INDEPENDENT CHILDREN’S LAWYER: Marshalls & Dent

FILE NUMBER: MLF 1269 of 2002

DATE DELIVERED: 24 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 24 May 2007

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr G. Page SC

SOLICITOR FOR THE RESPONDENT: John-Paul Mould Solicitors

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms E.A. Benjamin

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Marshalls & Dent

Orders

1. That the matter be referred to the Court Services Manager to be set down in October 2007 for a final hearing and as a primary matter estimated to take not more than 5 days.  In anticipation of that hearing and by way of preparation for it:-

   (a)

   The parties and their practitioners attend a trial notice listing on Friday

   
   

   8 June 2007 at 9:30am in the Melbourne Registry and the wife and her practitioner be permitted to attend by telephonic link up but be together in the same room when they do so.

   (b)The parties attend a pre trial conference as directed by the Registrar presiding at the trial notice listing which I anticipate will be in August 2007;

   (c)That for the purpose of fixing the matter for final hearing I direct that the Registrar disregard any requirements that there be no extant interim proceedings between the parties.

2. That I adjourn the interim parenting applications being the further amended application in a case filed by the father on 18 May 2007 and the mother’s response to an application in a case filed 18 April 2007 to a date to be fixed by the Court Services Manager in consultation with my Associate after the filing of further material by the mother as is provided for in paragraph 3 of this Order.

3. That in anticipation of a further interim hearing in relation to parenting matters, the mother file and serve any affidavit material and an amended response to an application in a case upon which she relies and, thereafter, the father have

   
   

   10 days in which to file applications and affidavits in response thereto. 

4. That in event that the independent children’s lawyer is served with further affidavit material by the mother, as is envisaged by the preceding paragraph of this order, she contact my Associate as soon as practicable and ascertain the date upon which the matter can be relisted before me for the wife’s further interim application to vary interim parenting arrangements between now and a final hearing. 

5. That 2 days prior to any relisting of the matter for an interim determination, the independent children’s lawyer provide to the husband and the wife, via their respective solicitors if they have solicitors, a minute of the order which in her preliminary view ought to be made on the interim hearing date.

6. That the time for compliance by the wife with paragraph 5(b) of the Orders made on 19 April 2007 be extended to 4 June 2007.

7. That by not later than 5pm on Thursday 31 May 2007 the wife notify the independent children’s lawyer in writing of the names and address of all medical practitioners, psychologists, social scientists or like professionals by whom she has caused, permitted or suffered the child … born … September 1994 to be assessed since 1 April 2007 together with the dates and purposes of any such attendances.

8. The independent children’s lawyer provide the father with a copy of any information provided by the mother pursuant to the preceding paragraph hereof.

9. That the father forthwith direct the proper officer of W School to implement in respect of the child all supports and interventions which he or she would consider appropriate for the child if he were to continue to attend that school for the balance of the 2007 academic year and, for the avoidance of doubt, that is to include the support offered by any school psychologist or like professional.

10. That as soon as practicable, the independent children’s lawyer cause a sealed copy of this Order to be served on the proper officer of the school attended by the child and also to contact the principal of the said school and confirm with him or her the equivalency of the parental responsibility of the mother and the father and, in particular, that it is appropriate to discuss all matters concerning the child’s education with the mother just as she or he would with any other parent of a student enrolled at the school.

11. That the independent children’s lawyer make such arrangements as are necessary for Dr W to assess the mother and the child in the same manner in which Dr W has already assessed the child and the father and for that purpose:-

    (a)The mother be solely responsible for the cost of that assessment ;

    (b)The mother pay an equivalent to the estimated cost of the report into the trust account of the independent children’s lawyer prior to the first appointment for the assessment taking place;

    (c)The mother be at liberty to provide to Dr W any materials by way of reports or affidavits or tape recordings that she considers are relevant for the formulation of Dr W’s assessment, providing that all such documents and things be comprehensively described in a schedule which is sent to the independent children’s lawyer and to the father prior to the first appointment for the assessment.

12. That the operation of paragraph 15 of the Orders made on 16 March 2007 be suspended (which otherwise precludes the mother from entering the state of Victoria) for the purpose of the mother entering, or remaining, in Victoria to see

    
    

    Dr W for the assessment of herself and the child.

13. That the independent children’s lawyer keep the father advised of the arrangements for the assessment by Dr W of the mother and the child and the father make the child available for the purpose of the assessment.

14. That for the avoidance of doubt, paragraph 11 of the Orders made on 20 February 2007 continues in full force and effect, that is, until further Order, the mother and father by themselves, their servants and/or agents be and are hereby restrained from causing, permitting or suffering the child to be examined and/or assessed by any medical professional, psychologist or like social scientist in connection to these proceedings without the prior written consent of the Children’s Independent Lawyer.

15. That liberty to apply to have this matter mentioned before me by arrangement with my Associate.

16. That my reasons for decision be transcribed and a copy be sent to each of the parties.

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Hamley & Hamley (No 2).  

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1269 of 2002

Mr Hamley

Applicant

And

Mrs Hamley

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me as Judge manager and today was to be an interim hearing, necessarily curtailed, of the competing applications by the applicant father and the respondent mother in relation to their only child, a son, born in September 1994, who is 12 and a half years of age.  In anticipation of today, the mother was to file and serve any further affidavits that she relied upon by 4pm on 2 May 2007 and the father was to file and serve any further affidavits upon which he relied by 4pm on 16May 2007.  Neither party managed to comply with those orders. 

2. The father's application on the last date was the application in a case filed on 16 April 2007.  It was itself an amended application and he sought orders as follows:

   [1]. That [the mother] be retained at the Brisbane Family Court by the AFP or QLD Police until [the child] is in the custody of the AFP.

   [2]. That the AFP locate [the child] immediately and place him in my protective custody to return to Melbourne and reside with me until such time as a final hearing is set.

   [3]. That [Ms L] enable access to her home to collect [the child’s] personal items that are of immediate need.

   [4]. That [the mother] be restricted from the state of Victoria until such hearing date is set.

   [5]. That [the child] is to be assessed by a Child Psychologist via the ICL to assess his psychological state. I also request an Educational Assessment to determine the appropriate schooling for [the child].

   [6]. That any contact [the mother] has with [the child] is to be supervised contact.

   [7]. That [the mother] is to return to live in Melbourne as soon as possible and is to reside in the metropolitan area by no later than the end of the 2^nd term school holidays in Melbourne.

   [8]. That [the child] is to live with his mother during this period until the final hearing is held.

   [9]. That the support program discussed by the […] CAMHS be provided for [the child] and he attend the appropriate program as determined from his assessment.

   [10]. That [the mother] also attend a suitable program that supports [the child] and herself as recommended by the CAMHS unit.

   [11]. That during the period prior to the final hearing [the mother] ensure that [the child] is in contact with [Ms B] and that recommendations are followed.

   [12]. [The child] is to attend a mainstream school as he is need of more structure and discipline in his environment.

   [13]. [The child] is to have contact with his father every alternate weekend from immediately after school Friday until the return of school Monday.

   [14]. Half of all school holidays to be spent with his father.

   [15]. [The child] is to made available for contact for significant dates of family members.

   [16]. The school that [the child] is attending is to be advised of the orders and the need for communication with [the father] should any concerns be raised. That [the father] have the liberty to attend the school as freely as any other father or parent.

3. The effect of the orders sought by the husband would be that the child would return to the primary care of the mother but the mother would be required to reside in Melbourne and for the child to be accepted into a mental health program run by a Hospital. 

4. The mother's application on that day is set out in her response filed on 18 April 2007 (document 272 on the court file) and it sought the following orders:

   [1]. Until further order the child […] born […] September 1994 live with the mother in Brisbane.

   [2]. That is it is ordered that the child live with the mother then the father spend time with the said child as follows:-

   a) when the father is in Brisbane on one weekend per month from Saturday 1pm until Sunday 3pm, upon the provision of 7 days written notice;

   b) telephone contact every Wednesday and Sunday evening between 6:30pm – 7:00pm;

   c)for the June 2007 school holidays from the first Saturday of the commencement of the holidays for a period of 10 days;

   d) he September 2007 school holidays for a period of 10 days commencing from the first Saturday of the holidays;

   e) he 2007 Christmas school holidays commencing the first Saturday for a period of 21 days.

   [3]. In the event that [the child] does not live with the mother then until further order the mother spend time with the child as follows:-

   a) when the mother is in Melbourne on one weekend per month from 1pm Saturday until 3pm Sunday upon the provision of 7 days written notice;

   b) telephone contact every Wednesday and Sunday evening between 6.30-7.30pm;

   c) for the June 2007 school holidays from the first Saturday of the commencement of the holidays for a period of 10 days;

   d) the September school holidays for a period of 10 days commencing from the first Saturday of the holiday period;

   e)the 2007 Christmas school holidays commencing from the first Saturday for a period of 21 days.

   [3]. (sic) That order 15 of the orders of March 16 2007 whereby the mother is restrained from entering the state of Victoria be discharged.

5. The effect of those orders, if granted, would have been for the child to return to the primary care of the mother but reside in Brisbane and for the father to have time with the child in Brisbane. 

6. On 19 April 2007 the mother was represented by Mr Page of senior counsel, instructed by Ms Anstee of Anstee Lawyers in Queensland.  An adjournment was sought by the mother in order for her to be able to put on affidavit material in support of her case. 

7. Specifically, the affidavit material was discussed as dealing with the arrangements that the mother would have for the education of the child in Brisbane, housing - that is, where he would live, the basis upon which the mother and the child would occupy that premises, by lease or otherwise, what sort of house it was and in what sort of neighbourhood it was located.  Furthermore, the wife proposed to depose to her financial circumstances, it being the case that she had recently taken a job.  The adjournment was granted on the basis that is evident from the orders of 19 April 2007. 

8. When the matter came before me today, the mother is represented by another solicitor, a Mr Foster of John-Paul Mould Solicitors of Brisbane.   Mr Page of senior counsel appears again on behalf of the mother.  The mother has not filed the affidavit material for which she earlier sought the adjournment.  I am informed by Mr Page from the bar table that the reason for her failure to comply includes a mistaken belief by either the mother or Ms Anstee as to the availability of funding for the mother and, in any event, Ms Anstee's determination not to continue to act for the mother whilst there was some ambiguity in relation to funding. 

9. The mother seeks a further seven days in which to file material.  The adjournment per se is not opposed by the father or by the independent children's lawyer, although they are firmly of the view that the matter should be dealt with. 

10. In this context I can mention now that I have ascertained that a final hearing date should be available to these parties in October 2007.  I have estimated the matter taking not more than five days.  In fact it may take less, but that is the maximum amount that it can take. 

11. Working back, a trial notice listing will be appointed on 8 June 2007 at 9:30am and that will be in Melbourne.  The mother and her practitioner may be linked in telephonically to that.  It will be necessary for the mother to be physically in present of her legal practitioner at the time of the trial notice listing.  The pretrial conference would, I anticipate, be conducted in August 2007 and the hearing date is likely to be 22 October 2007.  Still the mother wishes to proceed with an application to have the child return to her in Queensland between now and the final hearing. 

12. Whereas the adjournment is not opposed, the father seeks that the time that the mother is to spend with the child should be altered from each weekend, which is pursuant to paragraph 7 of orders made by me on 19 April 2007, to each alternate weekend.  In relation to school holidays, he says that they should be halved, with the child being in his household for the second week.  The relief sought by the father cannot come as any surprise to the mother or to the independent children's lawyer.  I should have mentioned earlier that the father did file certain documents in anticipation of today's proceedings.  They were filed on 18 May 2007, some two days outside the time limit.  The father has recast the relief that he seeks to seek the following orders:

    [17]. As of the 24^th of May 2007 [the child] is to be in the primary care of his father until further orders.

    [18]. [The child] is to remain at [W] School for the reaminer (sic) of the 2007 school year.

    [19]. [The child] is to have contact with his mother each alternate weekend from after school Friday until 5pm Sunday, and is to be returned at 5pm to the home of his grandparents at [W]. In the event of [the child] not attending school or is unwell on the Friday this contact will be at the discretion of the father.

    [20]. [The child] is to have 5 days contact period over the term holiday break until the end of the school year.

    [21]. [The child] is to have phone contact with his mother on Sunday evenings at 6pm for 30 minutes on the non contact weekends.

    [22]. That [the mother] is to deliver all of [the child’s] personal belongings to him at the next contact weekend and if volume of property is an issue, then the most important first and the remainder over the following contact weekends.

    [23]. [The mother] is to be restrained from attending [W] School except on the Friday afternoon at 3:30pm of her contact weekend and for the scheduled parent teacher interviews as set by the school.

    [24]. [The mother] is to have professional support in a structured program, to assist her with understanding and accepting the impact her behaviour has a result of her diagnosis of Dr [E]. Her ability to deal with her issues will assist her with her parenting skills.

    [25]. [The mother] is to [be] restrained from removing [the child] from the state of Victoria until further order.

    [26]. The education arrangements for [the child’s] secondary school and the living and contact arrangements for 2008 and beyond be determined at a hearing to be held in early November 2007.

13. The effect of those orders, if they were granted on an interim basis, is that the child remain in Melbourne and he remain going to a school which the husband deposes he has been attending since 16 April 2007. 

14. The independent children's lawyer welcomes the fact that the matter will be dealt with on a final basis in October but seeks compliance by the mother with various orders or providing various informations.  In particular, paragraph 5(b) of my last orders required the mother's then solicitor to produce a copy of the mother's current licences to drive in any state in Australia, including the reverse side of the licences.  That was to be done by 26 April 2007.  It has been followed up a number of times in correspondence.  Most recently, the mother stated on 4 May 2007 that she would be able to produce the licence within a short time frame of some days but could not do so at that time because her handbag had been missing and not located.  The mother has provided evidence today to say that she has not yet applied for a replacement licence in Queensland but will do so. 

15. The other matter that the independent children's lawyer seeks be reflected in orders is that the mother provide details of any doctors or medical practitioners, psychologists or like professionals who the mother has allowed the child to be assessed by since April 2007.  The mother has said that on the first or second weekend that she came to Melbourne - and I would calculate that as being 21 April or 28 April - she took the child to Dr J, a medical practitioner of C, pursuant to a specific request by the child, and she permitted the child to speak with Dr J privately.  The mother does not oppose the orders to provide details of all such attendances. 

16. Whether it be for the interim hearing or the final hearing, the mother also seeks to redress what she perceives as being an imbalance in an assessment done by a Dr W of the child and the father.  I mention this here because, similarly, the orders sought by the mother are not opposed.  The psychiatric assessment of the child was conducted by Dr W pursuant to paragraph 10 of the orders made on 19 April 2007.  It appears, however, that the assessment has also included an assessment or partial assessment of the father.  It is common ground that what it has not included is any observation of the mother independently or in the company of the child.  It was also done without the mother having an opportunity to submit any materials to Dr W.  Normally, I would question why parties needed to present materials to a single expert witness in the position of Dr W but in this case the father has already provided some materials, so I am satisfied in the spirit of even-handedness the mother should be entitled to do likewise.  The father has to date funded the assessments by Dr W and from now on the mother can fund that part of the assessment which involves herself and the child, reading the materials the mother submits and producing any further report.  That seems to me to split equally the costs of Dr W’s involvement. 

1. The only matter that I need to decide today is what should happen in relation to time between the mother and the child before the matter can come back for an interim hearing.  I am not prepared to make a timetable of dates.  The mother is not good with dates. 

2. I will order a formula to be triggered by the mother filing further affidavit material.  Then the father will have a right to respond.  If the mother does so promptly, the matter could, I anticipate, be back in court before the June-July school holidays for Melbourne state school.  If she is not so prompt, she will have to come to Melbourne to see the child. 

3. It is prudent and in my view necessary for me to make some orders in relation to the forthcoming holidays. 

4. The father and the independent children's lawyer seek that the weekend time the mother currently has with the child be altered to each alternate weekend.  If

   
   

   I am not with them on that, they seek that the mother have two out of each three weekends with the child.  The basis upon which it is sought appears to be twofold. 

5. The child is attending W School.  There have been discussions between the independent children's lawyer and the principal of the school, and whilst I do not regard the information as being evidence, I do regard it in the manner of instructions for an interim hearing.  The school has apparently observed a degree of disruption or difficult presentation by the child following weekends when he has spent time with his mother.  They say that that is likely to be a result of the time that the child spends with his mother and it would in all circumstances be preferable to give him one in two weekends off and have him spend that with the father. 

6. The second basis is the limited time that he now spends with the father.  The orders that I made on 19 April were made on the basis that the child would continue to live in the father's household or the father would be the primary carer.  In fact at some date that I am not aware of, the child has been placed by the father in the care of his paternal grandparents at W.  From there the child goes to W School.  W is about 45 minutes' drive from where the father lives.  At the moment he manages to see the child on Friday evenings and overnight on Friday and then he delivers the child to the mother at the residence of a Ms H.  The father says he also sees the child on one or two afternoons per week after school but he does not see him on weekends. 

7. The submissions by the independent children's lawyer had as their recurrent theme the importance of a stable environment for the child.  I do not underestimate the desirability of stability for the child in view of the fact that I am satisfied he has not had a stable existence in the recent past and appears on all accounts to be doing well at W School.  This is a marked improvement on his school attendance in the mother’s care in Melbourne and Queensland and his refusal to attend school mostly recently in the care of the father. 

8. I also take into account the views or observations of the school that the child is somewhat unsettled after periods of time with his mother.  It would be preferable for the child’s education that he not be unsettled and that he be able to concentrate clearly each school day. 

9. There are strong indications that the time that the mother has with the child on a weekend basis should be reduced.  The family consultant who supervises this matter, Ms B, is in court.  She did not give sworn evidence but, from the body of the court, indicated that in her assessment, the child would cope with a reduction of time from each weekend to, say, three out of four weekends.  

   
   

   Ms B is an expert.  I give consideration to her views. 

10. Having considered the matter carefully, I am not going to reduce the weekend time between the mother and the child.  One of my principal reasons for declining to do so is that it is conceded by the independent children's lawyer that it is likely to be the child’s view that he would not want the time increased.  If the child has managed to make as much progress as the evidence indicates he has made, I am not prepared to rock the boat. 

11. The father appears to have taken a very beneficial and constructive step in placing him in an environment where he is not only prepared to attend school but seems to be paying attention at school.  The child is involved in sport. 

12. Whereas there may be some disruption or lack of concentration on the child’s part after weekend contact, I am unable to be satisfied that that would be less if he did not have time with his mother.  My great concern is that the child may miss his mother to the extent that not only would he feel unsettled but he could feel saddened. 

13. As to the school holidays, I may review this if the matter comes back before me prior to the commencement of the school holidays in Melbourne.  If I do not, then I need to make orders now that will operate during the holidays, and I do so.  It is conceded that the holidays should be shared.  I do not know that it is conceded by the mother that they should be shared equally but I will do that in any event.  The mother will have time with the child from 10am on 16 June until 5pm on 24 June.  The weekend time pursuant to paragraph 7 of the orders made on 19 April 2007 will be suspended on the weekend of 30 June and recommence on 7 July 2007. 

14. I hope that the child continues to do as well between now and the next hearing as he has in the recent past.  

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  12 September 2007