Jalon and Liege

[2009] FamCA 1114

FAMILY COURT OF AUSTRALIA

JALON & LIEGE [2009] FamCA 1114

FAMILY LAW  -  CHILDREN  -  Magellan  -  mother failed to attend family report appointments  -  updated report  -  interim orders

Family Law Act 1975 (Cth)
FATHER:	Mr Jalon

MOTHER: Ms Liege

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 1067 of 2009

DATE DELIVERED: 6 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 6 November, 2009

REPRESENTATION

SOLICITOR FOR THE FATHER: Kevin Davine & Sons

COUNSEL FOR THE MOTHER: Mr. Pinner

SOLICITOR FOR THE MOTHER: Rutherford & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr. Eidleson

INDEPENDENT CHILDREN’S LAWYER Robert Halliday & Associates

Orders

1. That the mother attend upon Ms. C, Family Consultant, at dates and times to be advised for the purpose of the preparation of an updated Family Report pursuant to s.62G(2) of the Family Law Act 1975 and that the father do all things reasonably necessary to ensure that the child born … September, 2005 attend such appointment or appointments as are requested by Ms. C.

1. That the updated Family Report be released on or before 15 December, 2009.   

1. That the parties attend a Trial Notice Listing with the Magellan Registrar on 21 December, 2009 at 2:15 pm. and the practitioners may attend by telephone if that is more convenient. 

1. That until further order the mother spend time and communicate with the child on each Monday, Wednesday and Friday from 9:00 am. until 12:00 noon  PROVIDED THAT  :

   (a)such time take place on Friday at the G Play Group when the play group is operating and attended by the child;  and otherwise:

   (b)such time take place at the home of the paternal grandparents and be supervised by one of the paternal grandparents at such other times or at such other place and subject to such other supervisor as the parties and the independent children’s lawyer agree. 

1. That until further order the mother may communicate with the child by telephone at reasonable times, with the mother to iniate and the father to facilitate such calls. 

1. That until further order paragraph (7) of the orders made herein on 30 July, 2009 remain in full force and effect.

1. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

2. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:      DGC 1067 of 2009

Mr Jalon

Father

And

Ms Liege

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The proceedings commenced in April this year.  They involve the parties’ daughter, L, who was born in September, 2005.  I will not rehearse the litigation history as the case moved from the Federal Magistrates’ Court, in which it was initiated, to this court and into the Magellan list. 

1. Pursuant to court order, a family report was prepared by Ms. C.  The report, dated 2 October, notes that the mother failed to attend the scheduled appointments with Ms. C.  I note the recommendation in that family report that the child remain in the care of her father, continue to have supervised time with her mother, have no contact with Mr. Liege (the mother’s current partner and the father of her son, K) and that contact with the maternal grandmother occur in an independent location. 

1. The mother now seeks another opportunity to meet with Ms. C.  The father, through his counsel, has expressed scepticism about the likelihood of her attendance and concern that preparation of an updated family report may impact on the trial date. 

1. The reality is that this case cannot be listed in the Magellan sittings that commence next Monday;  they are over subscribed and, in any event, further trial material will need to be filed.  The next Magellan sittings are in February 2010 and there is time for an updated report and the preparation of trial material before then. 

1. The court’s focus must be on the child and on ensuring relevant evidence is available for the trial.  I am satisfied the mother should be given another chance to attend upon Ms. C.  Orders will make provision for that and for the release of an updated report by 15 December.  The parties will then attend a trial notice listing the Magellan registrar at 2:15 pm. on 21 December, 2009.  Those legal practitioners who cannot conveniently attend that listing in person may do so by telephone. 

1. The current interim orders provide for the mother to spend time with the child from 9:00 am. to 12:00 noon on three days a week.  On Fridays, time has been at G Play Group.  There is some concern that that service will close over Christmas and, it seems, some concern about its ongoing funding.  The mother is not at court today.  Her counsel has advised that his client is not comfortable about continuing to see the child at the home of the paternal grandparents, with one of them supervising.  No recent material has been filed by her.  No alternative arrangements are put forward.  There is nothing on which the court could determine that the child’s best interests require an alteration of the interim orders prior to trial.  The existing orders will ensure maintenance of the relationship between the mother and the child, and the safety and security of the child, pending determination of the competing allegations. 

1. I stress that the best interests of the child and the need to protect her against risk are the matters on which I rely in making orders which provide for another adult to be present when the child spends time with her mother.  The decision cannot be based on parental convenience or parental wishes.  Orders will allow for other supervisors to be involved, if the parties agree. 

1. It will be important for those who advise the mother to ensure she understands that if she fails to attend the scheduled appointment or appointments with Ms. C she will not be given another chance to do so. 

I certify that the preceding
8  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2009.

…………………………………………
Associate.