Jasper and Jasper
[2007] FamCA 229
•26 February 2007
FAMILY COURT OF AUSTRALIA
| JASPER & JASPER | [2007] FamCA 229 |
| FAMILY LAW - CHILDREN - Less adversarial trial child matter – Interim orders made pending adjournment for final hearing in May 2007 – Matter could not proceed due to family consultant not being available to give evidence |
| Family Law Act 1975 |
| APPLICANT: | Mrs Jasper |
| RESPONDENT: | Mr Jasper |
| INDEPENDENT CHILDREN’S LAWYER: | Marshalls & Dent |
| FILE NUMBER: | MLF | 5140 | of | 2003 |
| DATE DELIVERED: | 26 February 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 26 February 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Macgregor |
| SOLICITOR FOR THE APPLICANT: | Macgregor Solicitors |
| THE RESPONDENT: | In Person |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Ms Mandelert |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Marshalls & Dent |
Orders
That all previous parenting be and hereby suspended.
That the husband and the wife have equal shared responsibility for the child, a daughter, born in December 1994.
That until further order the child reside with the wife.
That until further order the husband send time and communicate with the child as follows:
(a)Every alternate Sunday from 10am to 5pm commencing on 4 March 2007;
(b)From 10am to 5pm on Father’s Day in the event that Father’s Day falls on a Sunday on which the father is not entitled to spend time with the child pursuant to these orders;
(c)For 3 hours on the father’s birthday being 17 November and on her birthday being in December in each year;
(d)At such times as the parties may agree upon from time to time;
(e)By telephone on a regular basis;
(f) By email, letter, gifts or cards.
That in the event that Mother’s Day falls on a Sunday during which the father is entitled to spend time with the child any such time on Mother’s Day be and is hereby suspended.
That the husband and wife each keep the other informed and notified of:
(a)Any significant medical event affecting the child;
(b)Any incapacity which precludes him or her being able to care appropriately for the child including any hospitalisation of him or her or recommendation that he or she be admitted to hospital for treatment including the expected duration of any stay in hospital;
(c)His or her current residential address and telephone number including any changes thereto from time to time, noting that the father has advised the court this day that he now resides at S in the State of Victoria.
That the husband provide the child and the wife with as much notice as possible in relation to family events or celebrations that he hopes the child can attend, and which fall on times other times specified in paragraph 4(a) hereof and, as soon as practicable, the child notify the father of whether or not she can attend.
That the wife do all things necessary to direct and authorise the proper officer of the school from time to time attended by the child to provide to the husband a copy of her school report, notices to parents, newsletters, order forms for photographs and all other material normally provided to parents of students and do so at the expense of the husband.
That the wife do all things necessary to direct and authorise the proper officer of the school attended by the child from time to time to notify the father direct of parent teacher interviews and school events normally attended by parents or father’s of students.
That for the avoidance of doubt the appointment of the independent children’s lawyer continue.
That pursuant to section 65L of the Family Law Act 1975, the Manager of Child Dispute Services for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a family consultant to supervise compliance by the parties with the parenting order made this (“the Order”) and to render to either party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, the Order, such supervisory counselling to be a period of 2 years and to be reportable AND IT IS REQUESTED that Ms H be the supervising family consultant and consult with the child either by telephone or in person, not earlier than the last two weeks in April 2007 and not later than the expiration of 1 May 2007, to form and assessment of how satisfactory these interim orders have been including the views of the child in relation thereto.
That for the purpose of the assessment provided for in the preceding paragraph whether or not that assessment is submitted to writing be a matter within the discretion of the family consultant.
That the family consultant be available to give evidence on the adjourned date unless advised otherwise.
That until further order the father not take the child to ballroom dancing.
That the further hearing of this matter be adjourned to Tuesday 8 May 2007 at 10:00am for final determination.
That on or before 1 May 2007 the independent children’s lawyer provide to the applicant and the respondent a minute of the orders which in her preliminary view ought to be made a final orders in these proceedings on the adjourned date.
That on or before 24 April 2007 all parties file and serve any further material upon which he or she relies together with a statement of the final orders which he or she seeks.
That my reasons for judgment this day be transcribed and when transcribed a copy be sent to all of the parties.
That pursuant to section 65DA(2) and 62B 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 annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 5140 of 2003
| Mrs Jasper |
Applicant
And
| Mr Jasper |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
These are my reasons in relation to an adjournment of this matter for final hearing before me on Tuesday 8 May 2007. Of course, nothing prevents the parties from resolving the matter, if they can agree as between themselves, prior to the adjourned date in May. I trust the independent children’s lawyer will work towards that course.
This matter comes before me listed for two days as a final hearing. In anticipation of the hearing there has been a family report completed by Ms H and dated 1 February 2007. I receive that report into evidence. It seems to be a well thought out and comprehensive report. Unfortunately Ms H is currently on leave and will not return to the registry nor be available for cross examination until the end of March 2007.
Today, the applicant wife is represented by Ms Macgregor.
The respondent husband represents himself. Mr Mapelstone solicitor has previously acted on his behalf but withdrew last Friday and the husband has filed a Notice of Address for Service this morning saying where he lives and that he accepts service of documents at S.
The independent children's lawyer is represented by Mrs Mandelert of counsel.
I am advised from the bar table and accept that as of last Friday, the wife and the independent children's lawyer considered the matter to be resolved. Apparently that was also the understanding of the husband's then solicitor Mr Maplestone, but the husband does not want to proceed with the joint proposal of the wife and the independent children's lawyer and has sought orders somewhat different from that.
In saying they are somewhat different, I should also mention that many of them are not opposed by the wife. The orders that the wife and independent children's lawyer sought appear as annexure “W1”. For the transcript I include the text of those orders in this judgment.
1. That all previous parenting Orders be discharged.
2.That the husband and the wife have equal shared parental responsibility for the child [a daughter] born the […] day of December, 1994.
3.That [the child] reside with the wife.
4.That the husband spend time and communicate with [the child] as follows:
(a) at such times as may be agreed to between the parties, and [the child], from time to time;
(b) by telephone, on a regular basis;
(c) by email, letter, gifts, or cards.
5.That the husband and the wife each keep the other informed and notified of:
(a) any significant medical event affecting [the child];
(b) current residential address and telephone number including any changes thereto from time to time;
6.That the husband be entitled to receive from [the child’s] school, copies of all school reports, notices, newsletters, order forms for photographs, and all other material normally provided to parents of students, at the husband’s expense;
7.That the husband be entitled to attend parent/teacher interviews and any other school events normally attended by parents of students.
8.That all extant applications be otherwise dismissed.
9.That the appointment of the Independent Children's Lawyer be discharged.
IT IS NOTED:
That the husband and the wife will equally share all school expenses, including school books, school uniform, and excursions, incurred for or on behalf of [the child].
On the other hand the husband sought some legal advice from the duty lawyer provided by Victorian Legal Aid. He saw a female lawyer this morning.
He came back to court seeking specific orders for time and communication with the child as follows:
a)every second Sunday from 10am to 5pm;
b)Father's day from 10am to 5pm;
c)his birthday and the child’s birthday for 3 hours;
d)for the child to attend special family events with him in the event that she's free and available and inclined to do so;
e)if the wife is hospitalised or unable to care for the child, he seeks that the child automatically reside with him;
f)he wants lifted any restriction whatsoever on dancing activities to which he can take the child or participate when she is in his care.
Many of the above are agreed to by the wife to the extent that they are, I have discussed with the parties that I'll make them the subject of interim orders today. Additionally, the wife says that the child should spend time with the father on Christmas day in 2007 and each alternate year thereafter from 9am to 4pm and in 2008 and each alternate year thereafter from 4pm to 10pm. In the event that Mother's Day falls on a Sunday during which the father is entitled to spend time with the child, any such time on Mother's Day be and is hereby suspended.
The wife seeks a continuation of the restriction about the child participating in ballroom dancing or being required to attend with the husband to such venues. This may be a matter about which I have to hear some evidence and it would be helpful to me if Ms H could discuss it with the child. I have previously restricted the husband’s ballroom dancing activities when the child is in his care. That is because the child had an objection. I accepted the child had an objection to attending as a spectator, late at night when she could otherwise have been at home doing her homework.
The husband has raised the fact that he participates with his immediate family and cousins in line dancing. I have not made an order about line dancing.
I have only made an order about ballroom dancing, but whatever orders I made in May 2007 I would like to reflect in broad terms what the child wants. So there will need to be some clarification in that regard.
I have provided for the parties to all file any material they rely on by 27 April 2007, that is in fact three days after Ms H will see the child. This is a matter where I would anticipate each party could also give oral evidence on the day of hearing. All that is required is that the matter be finalised on 8 May 2007 and obviously any cross examination of Ms H will have to be conducted on that day.
If the matter is capable of resolving then I ask that the parties notify my Associate so the hearing date can be given over to another matter which does require a hearing on the day.
It is not as if the parties have to wait until 8 May 2007 if they are able to resolve it earlier. That concludes these reasons.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 21 March 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as JASPER & JASPER
Key Legal Topics
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Family Law
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