Hirst and Brunton

[2007] FamCA 308

FAMILY COURT OF AUSTRALIA

HIRST & BRUNTON [2007] FamCA 308

FAMILY LAW – CHILDREN – With whom a child spends time – Interim

Family Law Act 1975 (Cth)

APPLICANT: MR HIRST

RESPONDENT: MS BRUNTON

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 438 of 2006

DATE DELIVERED: 30 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 30 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MS M. BROOKS

SOLICITOR FOR THE RESPONDENT: RIGOLI & ASSOCIATES

INDEPENDENT CHILDREN’S LAWYER COUNSEL: MY LYNCH

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: PETER LYNCH

Orders

1. THAT the further hearing of all extant applications be adjourned part-heard before Young J in the Children’s Cases Program to 26 and 27 July 2007 at 10.00 a.m.

2. That paragraphs 22, 23 and 25 of the order made 20 December 2006 be discharged.

3. THAT until further order the child, a daughter, born in September 2002 live with the mother.

4. THAT the father spend time with the child between the hours of 11.00 a.m. and 3.00 p.m. on each alternate Sunday commencing Sunday 1 April 2007 and until further order.

5. THAT for the purposes of such time spent the mother deliver the child to the front steps of Flinders Street Railway Station and the father return the child to that site punctually at the appointed commencement and conclusion times in the preceding paragraph.

6. THAT the father be permitted to have the child O accompany him on the first period of time spent and thereafter from and after the fourth period of such time spent and on a continuing basis.

7. THAT until further order the father’s fiancé, Ms J is not to be present at any changeover or otherwise at any time during the periods of time spent.

8. THAT the Family Consultant, Mr E, prepare an updated Family Report on all issues of time to be spent by the father with the child and in particular interview and seek documents and make all appropriate inquiries and investigations of issues in respect of:

   (a)         Ms J (the husband’s fiancé);
   (b)         Mr U (the mother’s friend);
   (c)         Mr B (the mother’s father).

9. THAT if for any reason either of the mother and father are unable to attend punctually, or otherwise within thirty (30) minutes of the commencement time they are to ring the other and notify them on their mobile phone and advise of their circumstances and, if the father is to be more than forty-five (45) minutes late then the order for time spent on that day is revoked.

10. THAT both parties keep the other advised, and also advise the Independent Children’s Lawyer of their current residential address and contact telephone numbers.

11. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

12. THAT pending further order the mother is to keep the father advised of any significant health or medical issue concerning the child.

IT IS FURTHER ORDERED BY CONSENT

1. THAT the Independent Children’s Lawyer be permitted, with the specific agreement of the father’s fiancée, to inspect her Family Court file in proceedings between herself and her former partner, Mr K and obtain such documents or information therefrom as may likely assist the Court and the Family Consultant in all issues of and concerning the interest and wellbeing of the child.

2. THAT leave be granted to the Independent Children’s Lawyer to issue subpoenas for the production of any and all required information from or on behalf of the father’s fiancée, and in accordance with her authority which was conveyed to the Court and is confirmed in the Notation to these Orders.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the mother and solicitor appearing as counsel for the Independent Children’s Lawyer.

IT IS NOTED

A.THAT the father’s fiancée is in Court and has heard all of the proceedings this day and the drafting of this Order.  Through her fiancé she has indicated to the Court that she will co-operate with and give necessary instructions for the Independent Children’s Lawyer to obtain any health, police, employment or other records that may be of interest to the Court.

B.THAT the father was provided by the Court this day with additional photocopies of the affidavits now filed by the mother from herself, Ms A and Ms G.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 438 of 2006

MR HIRST

Applicant

And

MS BRUNTON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In the matter of Hirst & Brunton and the Independent Children's Lawyer, the parties are before me on all children's issues relating to their only child, a daughter, born in September 2002.  The father appears in person.  Ms Brooks, of counsel, appears for the mother, Mr Lynch is the appointed Independent Children's Lawyer.  The court has received a report from the family consultant dated 6 March 2007 and that is admitted into evidence and has been read and relied upon. 

2. There are various other affidavits that appeared at court this day that seemingly now have been filed on 28 March 2007.  Those affidavits have only recently arrived by facsimile transmission and the originals need to be located and placed on the file.  They are the affidavits of the mother, Ms G and Mr A.  I understand they have not been served on the father and that has to be remedied as soon as practicable. 

3. For whatever reasons it is evident that the current orders that were made on 20 December 2006 have either not worked or been complied with. 

4. I propose to discharge paragraphs 22, 23 and 25 of those earlier orders. 

5. The father has expressed to the court very forthright requirements for him to enjoy time with his daughter and in particular they involve the orders not to be supervised and there are numerous other issues as to the date and time and the changeover venue and who is to be in attendance during time spent with the child. 

6. The mother and father have resolved some issues out of court, but not all issues.

7. I propose to announce these orders, not by consent, so that there is no issue as to whether matters were partly agreed or otherwise. 

8. I have also had the benefit of reading the further affidavits filed 28 March 2007 on behalf of the father and they being from himself, his fiancee Ms J, and Mr K.

9. I propose to request Mr E to prepare, on the basis of time spent and not residence orders sought, an updated report where he does interview and obtain such information in a manner as he deems appropriate from both the father’s fiancée and the mother’s friend.  Additionally, although I will not make it a firm requirement for the preparation of the report, it would seem appropriate to me that Mr E extend an invitation to the maternal grandfather to confer, in person or by telephone, with him to understand his involvement with the child and be satisfied as to the care of, support and understanding that he could provide, if necessary, to the child.

10. I am treating this matter as an ongoing interim matter.  There will be no final orders today.  The orders will provide for an interim period of time to be spent on each alternate Sunday between 11 am and 3 pm.  It will commence this Sunday, 1 April, and then, excluding Easter Sunday, be each alternate weekend from this Sunday until the adjourned hearing date. 

11. The issue of travel is a major dispute.  Both parties either do not have a reliable or roadworthy motor vehicle or otherwise the cost of petrol is excessive.  There is no easy answer, but doing the best I can I propose to make the changeover point for collection and return the steps of Flinders Street railway station.  It is an absolute condition of the orders that the parties, and particularly the child, when she is brought or returned by the parties, are to be punctual.  That means that the parents should endeavour to be not just on time, but early to allow for trains, timetables and Sunday travel which presents unique difficulties on occasion.

12. I have determined, notwithstanding the objection of the mother, that on the first Sunday, O, can be present with the father but on the next two occasions of fortnightly, Sunday contact, it is to between the father and the child only and thereafter, at the discretion of the father, O may accompany him on future occasions. 

13. Until the report of Mr E is received, the father’s fiancée is not to be present at changeover or otherwise is not to be present during the time spent with periods.  I well understand that is a matter of major objection by the father.  It is sought by both the mother and the Independent Children's Lawyer.  It is a matter that must be reviewed. 

14. The father, in his submission today, indicated that he is soon to marry his fiancée.  If she is then a permanent part of his life, there will have to be decisions made as to her contact with and ongoing involvement with the child and that will be a major focus of both Mr E and of the independent children's lawyer. 

15. I have some concern about the practicality and workability of these arrangements, but I have clearly expressed to the father the very generalised concept that "he must walk before he can run".  By that, of course, I mean he must resume his relationship and spend time with the child on an introductory basis before the court needs to consider longer and extended periods of unsupervised time, including potentially overnight and holidays.  I make no finding whatsoever on those issues.  I record that the father has indicated that long term he will be seeking a fuller involvement in the child’s life and upbringing and that may involve a shared parenting order or, more particularly, he may seek to establish grounds where he should be the resident parent.  All that is in the future.

16. One could express the hope that these parents would mature and talk to each other and try and resolve issues, but my present observations of this case would suggest that is a forlorn and unlikely possibility.  However, people do change and over the many, many years in front of them until the child attains the age of majority, there will be many opportunities for the parents to show some commonsense and act cooperatively.  One can live in hope.

17. The father has completed an anger management course and will, at his own arrangement, enter a parenting course.  When that is completed, the court and Mr Lynch needs to be provided with a copy of that successful completion. 

18. For those very brief reasons, and as part of an ongoing children's cases program and on an interim basis and until an adjourned date to be fixed, of which the parties will be formally advised within the court order that will be sent to their registered address for service.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 5 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Hirst & Brunton