Lennon and Zammitt

[2009] FamCA 657

FAMILY COURT OF AUSTRALIA

LENNON & ZAMMITT [2009] FamCA 657

FAMILY LAW – CHILDREN – interim proceedings – with whom a child spends time – application by the mother seeking the reinstatement of orders for time with the child – where the orders were previously discharged after the mother failed to return the child to the father – where there is concern about the mother’s capacity to support the child’s relationship with his father and siblings – where it is in the child’s best interests to remain living with the father – mother to spend supervised time with the child at a children’s contact service

Family Law Act 1975 (Cth) ss 60CA & 60CC
APPLICANT:	Ms Lennon

RESPONDENT: Mr Zammitt

INDEPENDENT CHILDREN’S LAWYER: Ashley Kent

FILE NUMBER: ADF 196 of 2004

DATE DELIVERED: 4 June 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 4 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS WRIGHT

SOLICITOR FOR THE APPLICANT: THE WOMEN'S LEGAL SERVICE SA INC

COUNSEL FOR THE RESPONDENT: MS CROYDON

SOLICITOR FOR THE RESPONDENT: CROYDONS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR McGINN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: LEGAL SERVICES COMMISSION

Orders

1. That pending further Order of this Court, the mother spend time with L born … October 2000 at either the Y or N Children’s Contact Service (“CCS”) upon the following bases:-

   a)that all such time be supervised at all times by members of the staff at either the Y or N CCS;

   b)that the mother’s time with L do occur at the CCS which is first able to offer supervised periods to the mother;

   c)that if at all possible such times be on a weekly basis for a minimum of two [2] hours and in the event that weekly periods are not possible, then for a minimum of two [2] hours on a fortnightly basis.

2. That prior to the resumption of the hearing before Dawe J on 10 August 2009, the CCS tasked with supervising the mother’s time with L do prepare a report(s) for the consideration of the Court and that such report(s) be filed and served prior to 10.00 am on Monday 10 August 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 196  of 2004

MS LENNON

Applicant

And

MR ZAMMITT

Respondent

REASONS FOR JUDGMENT

1. I have before me for determination the mother’s Application in a Case filed on 14 May 2009 in which she seeks the reinstatement of her Orders for time with the child L born in October 2000, which Orders were made by consent on 6 May 2009. On 11 May 2009 those Orders were discharged by Dawe J and her Honour provided quite detailed extempore reasons for that Order made by her on that date.

2. Essentially, the Orders that Dawe J made on that date were on the foundation of an Application for delivery up or recovery of L because the mother had not returned L to the father as she was obliged to do pursuant to the Orders of 6 May 2009. 

3. In a strict formal sense it is my view that the mother’s Application is ill-founded in that she should have filed a Notice of Appeal as against her Honour’s Orders of 11 May 2009 if she was dissatisfied with them.  What she has done is instead sought the reinstatement of the Orders her Honour discharged.  However, in my view the best interests of L override those technical constraints and I am satisfied that it would be appropriate for me to proceed today and deal with her Application in a Case.

4. I also have before me, although filed late but nonetheless documents to which I have had regard, a Response to an Application in a Case and an Affidavit filed by the father. 

5. I have also had regard, as I must, to the provisions of Part VII of the Act and in particular, to Sections 60CA and 60CC. That latter Section is divided into “primary considerations” and “additional considerations”. Without canvassing each and every one of them, I have borne in mind the relevant considerations that emerge from those legislative provisions. The significant ones, in my view, relate to the mother’s capacity to support L’s relationship with his father.

6. Ms Croydon (for the father) was kind enough to provide to me a Chronology of relevant events.  I have read that material and have had regard to the matters raised in that Chronology in reaching my decision.  Also, in terms of my intended Orders, I have the support of Counsel for the Independent Children’s Lawyer who has had the advantage of hearing submissions from the parties and reading the materials before the Court, some of which were filed subsequent to Counsel receiving his instructions from the Independent Children’s Lawyer.

7. As I said, the major concern continues to be the mother’s capacity to support L’s important relationship with his father and indeed, with his sisters.  Ms N, in her report of 5 May 2009, made reference to this concern and whilst that concern is expressed in a number of parts of her report, in summary I refer to and quote from the last paragraph on page 6:-

   “…. I continue to be concerned about [the mother].  I note that in the transcript of proceedings on the 8^th April 2009, [the mother] was clear that she did not have any intention of encouraging [L] to see his father, or that there was any benefit to [L] in seeing his father and sisters (see Transcript, page 37, paras 35 to 40).  While she said during her interview with me that she would be willing to agree to [L] seeing his father for half holidays and every third weekend, I am not confident in her readiness to be true to her word given the previous history of not presenting [L] for time with his father and sisters.  Thus, if [L] was to live with her, I remain concerned about [the mother’s] ability to properly support [L’s] relationship with his father and with his sisters and to understand his need for these relationships.

8. Those words of Ms N were somewhat prophetic in that in very short order after the delivery of her report and Orders being made by consent providing for the mother to spend time with L, the mother determined that she would make up her own mind as to what was best for L.  She defied the Orders of the Court and failed to return L to the father as she should have.  That led to Dawe J suspending the Orders for the mother to spend time with L.

9. What is also a matter of concern is that within the mother’s Affidavit in support of her application there is significant detail about her engagement of L in the adult issues in dispute between the parties.  There is significant discourse between the mother and L in which the mother should not have engaged L.  In the end result, she made her own determination as to what she would do and paid no regard to the Orders of the Court.

10. Thus, at this interim stage, there is significant evidence to suggest that L’s best interests would be promoted by remaining with his father and spending only limited time with the mother in circumstances where she cannot refuse to return L.

11. That suggests that the proposal advanced by Ms Croydon and supported by Counsel for the Independent Children’s Lawyer is an appropriate one, namely that the mother spend time with L at either the Y or N Children’s Contact Service.  Ms Croydon is confident that such time can be offered readily from about early July 2009 and from her memory, it may be possible that such times can be weekly rather than the usual fortnightly.

I certify that the preceding eleven  (11) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: