Leven and Waite (No 2)

[2010] FamCA 1244

FAMILY COURT OF AUSTRALIA

LEVEN & WAITE (NO. 2) [2010] FamCA 1244

FAMILY LAW – CHILDREN – Interim

Family Law Act 1975 (Cth)

APPLICANT: Ms Leven

RESPONDENT: Mr Waite

INDEPENDENT CHILDREN’S LAWYER: Mr Lampe

FILE NUMBER: MLC 2959 of 2010

DATE DELIVERED: 17 December 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchins

SOLICITOR FOR THE APPLICANT: C/- Women’s Legal Service Victoria

COUNSEL FOR THE RESPONDENT: Ms Palbas

SOLICITOR FOR THE RESPONDENT: Thelma Palbas & Associates

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lampe

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

Orders

1. That paragraphs 6, 7, 8, 9, 10, 11, 12, 14, 15, 16 and 18 of the orders made 11 May 2010 and paragraphs 7 of the orders made 16 June 2010 be discharged.

2. That until further order, the children X born … November 1995, Y born … October 1997 and Z born … September 2002 live with the mother.

3. That until the conclusion of all criminal proceedings against LO, the mother is restrained by injunction from allowing any of the said children to have contact with LO.

4. That the amended application filed 6 September 2010 and the response thereto filed 10 May 2010 are otherwise adjourned for final hearing on 23 February 2011 on an undefended basis if the father decides not to proceed further.

5. That the reasons for judgment this day be transcribed.

6. That the children be forthwith released by the Court to the care of the mother.

7. That the mother’s costs of this day are reserved.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2959 of 2010

MS LEVEN

Applicant

And

MR WAITE

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have already given reasons in this matter in relation to the outcome of the contravention proceedings and adjourned the matter to today to enable the parties to contemplate the positions in relation to parenting orders.  The positions are rather stark.  The father’s position is that the existing orders made in May 2010 should be effectively altered so that the mother has no contact at all with Y and Z.  The mother’s position is that the children should live with her.  She offered that they spend time with their father, but he has rejected that on the basis of concerns about his own safety.

2. My concern obviously is that there is clearly an overlap between the safety of the father and the safety of the children, but no alternate proposal is being made so that these children can have some part in their mother’s life, which is their right under section 60B of the Family Law Act.  My function is to make an order which is in the best interests of the children.

3. Mr Lampe, as the Independent Children’s Lawyer, has made it very clear that the children would not have any problems about seeing their mother, although Y indicated that he did not mind not seeing her.  I think the body language by the younger child makes it clear that there is still a relationship between mother and child, and it would be most unfortunate for the sake of the children if that was prejudiced in some way.  My function today is to put a holding position in place.

4. I was prepared to make it for a very short period of time, but the father has made a proposal that it is all or nothing.  It seems to me, in the circumstances, that what I should do is fix the final hearing for 23 February 2011 as an undefended matter unless the father decides otherwise.  If he decides he wants to participate in the proceedings, then the Court would obviously not proceed to hear the matter on a defended basis that day, and other arrangements can be made.  I think it is in the best interests of these children that they do have a relationship not only with their mother, but also their sister, albeit there was some reticence on the part of at least Y

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 December 2010.

Associate: 

Date:  18 January 2011