Jelic and Millay

[2009] FamCA 1371

FAMILY COURT OF AUSTRALIA

JELIC & MILLAY [2009] FamCA 1371

FAMILY LAW – CHILDREN – intervention of Families SA – family violence –substance abuse by both parties – Independent Children’s Lawyer supports child living with father and spending time with mother – injunctions – transferred to Federal Magistrates Court

Family Law Act 1975 (Cth)

APPLICANT: Mr Jelic

RESPONDENT: Ms Millay

INDEPENDENT CHILDREN’S LAWYER: Mr Bowler

FILE NUMBER: ADC 2191 of 2009

DATE DELIVERED: 30 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 30 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Childs

SOLICITOR FOR THE APPLICANT: Adelaide Family Law

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: Legal Services Commission of SA

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Bowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Hume Taylor & Co

Orders

1. That this case be transferred to the Federal Magistrates Court and listed for hearing at 10:00am on 26 November 2009 before Federal Magistrate Kelly.

2. That during the period of the adjournment the child … born … July 2000 live with the father.

3. That during the period of the adjournment the said child spend time with the mother from the conclusion of the time the child spends at school on each Friday commencing on Friday 6 November 2009 until 11:30am on the following Sunday.

4. That at the commencement of each period of time the mother collect the said child from the child’s school and the return of the child to the father at the conclusion of each such period of time spent be effected by the mother ensuring that the child is placed on the appropriate bus to P and that the father is advised by the mother of the details of the bus and the expected time of arrival.

5. That until further order the mother be restrained and an injunction is hereby granted restraining her from consuming alcohol for a period of 12 hours prior to the commencement of any period of time spent with the said child and during any such time.

6. That until further order the father be restrained and an injunction is hereby granted restraining him from consuming illicit substances during any time that the child is with him.

7. That the Minister of Families and Community Services be released from the need to attend any further hearings in this matter.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2191 of 2009

MR JELIC

Applicant

And

MS MILLAY

Respondent

EX TEMPORE REASONS

1. This matter is back before me having been adjourned from 14 October 2009 by Dawe J.  It was a matter that was initially before me following its transfer from the Federal Magistrates Court earlier this year.  Perhaps just dealing with that first.  It was transferred to this court by Cole FM on the basis that it was a matter that may well fit within the guidelines of the Magellan Project.  The Magellan Registrar though has considered that matter and determined that it does not fit within the guidelines.

2. That led me, when the matter was last before me on 24 August 2009, to indicate that it was a matter that should in fact be transferred back to the Federal Magistrates Court given the issues involved and I indicated that I proposed to do that on the next occasion the matter was before me, subject of course to how the matter had progressed in the meantime.

3. I have raised that issue again today and no one has spoken against it, namely the transfer back to the Federal Magistrates Court.  The obvious concern in doing that is whether any unnecessary delay is created.  However, it seems that not only will there be no delay but there is a distinct advantage in taking that option which I will come to in a moment.  Thus I propose to transfer this matter back to the Federal Magistrates Court and list it before Kelly FM at 10:00am on 26 November 2009.

4. I understand that there is now an arrangement or protocol in place between this court and the Federal Magistrates Court with transfers that each court will access the other's listings and transfer matters direct to an available listing where necessary. 

5. In the meantime there is a dispute as to the time that the child should spend with the mother.  It was thought initially that I would need to make orders extending through to and including the Christmas school holidays, but with the listing that I can provide for the matter in the Federal Magistrates Court I need only address the issue of the time that the child spends with the mother between now and then.

6. That has a distinct advantage in that one of the bases of the father's case is that the child has not spent any time with the mother since June and thus there should be a gradual reintroduction of the child to the mother.  The mother's case though is that there is no need for that and what she seeks is that the child spend each weekend with her, but come the Christmas school holidays that the child spend alternate weeks with each of the parties. 

7. The Independent Children's Lawyer, whose submissions I take great note of, has suggested that it might be premature to move to week and week about in the Christmas school holidays.  He has made the sensible suggestion that that would be dependent upon how the time goes between now and then.

8. Thus it will hopefully be obvious as to the advantage of listing the matter on 26 November 2009, namely, by then the child will have spent time with the mother and how that has progressed can be considered by the Federal Magistrate and a better informed decision can be made as to what should happen during the Christmas school holidays.

9. That said what I am going to address is what should happen between now and 26 November 2009.  Now, time is short in that there is only a few weeks obviously between now and then, and we unfortunately lose the opportunity of using this weekend because today is Friday and the logistics are difficult. Indeed more importantly, the child is at school today and will not know of the order that I make today if I was to start it today.  Thus whatever order I make has to start next weekend, which is the weekend commencing Friday 6 November 2009.

10. The issue is whether there should be time spent each weekend or each alternate weekend.  In practical terms what that would mean is if it was alternate weekends there would only be the weekends commencing 6 November and 20 November 2009 before the matter was heard by the federal magistrate on 26 November 2009.  If it was every weekend there would be three, namely the 6^th, the 13^th and the 20^th. 

11. The proposal of the father is that it be alternate weekends.  His proposal is that there be a collection by the mother of the child on the Friday at either 4 or 5 o'clock from the P Police Station and a return there on the Sunday afternoon.  The mother says it should be every week and she should be able to collect the child from the child's school and then the child can return to the father on the Sunday afternoon by bus.

12. The Independent Children's Lawyer has supported the father's position in terms of alternate weekends at this stage, but he supports the mother's position in relation to handovers, namely, collection from school on the Friday and return by bus on the Sunday.

13. This is a matter which commenced in this court in 2006.  There were final orders made in April 2007 which provided for the child to live with the mother, and there was no order for the child to have any time with the father. 

14. Since then the father has spent time in prison as a result of being convicted of an assault or assaults upon the mother, and upon his release in May or June this year he has come back on to the scene and the child has been in his care initially off and on, but now on a de facto permanent basis for some time supported, I might say, by Families SA.

15. The complaint that is made in relation to the mother is that she has habitually consumed alcohol to excess.  The child himself reports that that is a concern of his.  He has consistently run away from the mother and that was the scenario in which the father secured the care of this child.  The mother's case is that there is a longstanding history of domestic violence which has had an impact upon the child.  He has witnessed that domestic violence and that is the cause of the child's behaviour or conduct towards his mother.

16. Now, I am not in a position to make any finding about why the child kept running away from the mother or what concerns the child had and what is the cause of it.  The fact of the matter is that this is an interim hearing and indeed a hearing which involves a proposed order of short compass, namely only a matter of a few weeks.  The significant issue though is the reintroduction of the child to the mother.

17. It seems that on either party's approach there is no issue about that, and the child should be reintroduced to the mother. That is supported by the workers who are involved in this matter, and particularly Ms A who has been tasked through Centacare with conducting a program with the family to avoid the family being referred to and caught up in the child protection system.  At the moment there are positive results from that program in that the child is attending school, not full-time but attending school, and he is living with his father. 

18. The only thing that is missing at the moment is he is not having any time with his mother.  As I say both parties say that should occur and the child himself wants to see his mother.  On the other hand the child has expressed concern about his mother's consumption of alcohol.  I cannot make any findings about what may or may not be happening about that, but the mother is prepared to enter into an undertaking, or have an injunction put in place, that she not consume alcohol while she has the child in her care.

19. The mother in turn has raised a concern about the father's consumption of illicit substances.  The evidence on which that claim is based is entirely hearsay, and I can attach little weight to it, but the father through his counsel has indicated that without conceding the need for it he does not oppose an injunction being made which restrains him from consuming illicit substances whilst the child is in his care.

20. Now, one would think and one would hope that that takes care of two major issues that are part of the dispute between the parties.  I am sure there is far more to it than that and of course there is the history of violence and the concern that the mother has about that.  The proposal of the mother means that she and the father will not come into contact with each other and if there is any prospect of that I am told, and I accept, that there is a restraining order in place which covers that.

21. The program that I have referred to is ongoing, but it is not an indefinite program.  I note that the mother has raised concerns about her involvement in that program and she feels she has been left out of it to this stage.  I am comforted though by the fact that Mr Bowler is in contact with Ms A, and has alerted her to the mother's concern about that and provided her with the mother's affidavit. Thus hopefully the mother's concerns in that regard can be overcome very quickly.  I would be surprised otherwise because of course now there will be an order that the child spend with the mother and thus there is every basis for and every need for Ms A if she continues to be the worker involved to very much involve the mother in this program and see if this troubled family can look forward to a settled future. More importantly, because obviously the child is the major concern and his best interests are the paramount consideration it is to be hoped that the child settles down and is able to enjoy a meaningful relationship with both of his parents.

22. However, that is for the future.  My task at the moment is, as I say, to decide whether there should be time spent every weekend or alternate weekends in the short term.  In my view it should be every weekend.  We are not talking about a mother who has had no contact with her son for a lengthy period of time.  Certainly it has been since June, but it must not be forgotten that up until June the child was in the full-time care of the mother. 

23. Clearly there were problems that developed between the child and the mother, and the mother obviously needs to think clearly about that and take some responsibility for that and ensure that it does not happen again.  There are supports available in the community and of course this program is an obvious support as long as the mother is involved in it, and I have said all I need to say about that. 

24. Obviously no one knows precisely how the next few weeks are going to go.  The child has not seen the mother since June, and there was obviously a problem in their relationship. However the child has now settled down and hopefully that can carry over to the time that the child is to spend with his mother and then the matter can progress from there, but that is going to be for the Federal Magistrates Court to consider.

25. Finally, I note that the Minister has been represented today again, and I thank the Minister for that, but it seems that there is no basis for the continued attendance of the Minister and I propose to make an order releasing the Minister from attending in this matter in the future.

I certify that the preceding 25 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 30 October 2009.

Associate