LILLEY & HAYFIELD

[2011] FamCA 1050

FAMILY COURT OF AUSTRALIA

LILLEY & HAYFIELD [2011] FamCA 1050

FAMILY LAW – CHILDREN – Consent Order

Family Law Act 1975 (Cth)

APPLICANT: Mr Lilley

RESPONDENT: Ms Hayfield

FILE NUMBER: PAC 5710 of 2007

DATE DELIVERED: 20 December 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 December 2011

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Brown

SOLICITOR FOR THE RESPONDENT: Whyte Just & Moore

Orders

1. That there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the mother engross the minutes and deliver them by electronic transmission to my Associate as soon as practicable.

3. That pursuant to s.65DA(2) and s.62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lilley & Hayfield has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: PAC 5710 of 2007

Mr Lilley

Applicant         

And

Ms Hayfield

Respondent

REASONS FOR JUDGMENT

1. This is an application in the judicial-duty list between Mr Lilley, to whom I shall refer as the husband, and Ms Hayfield, to whom I shall refer as the wife. 

2. I am giving some reasons in this particular case because it would not be unfair to describe it as an unashamed mess.  Any trial judge other than me who follows may find some benefit in this particular outcome today. 

3. The application before me emanates from a document filed by the husband on 2 December 2011.  It would not be unkind to say that the husband has cobbled together some orders which have been cut and pasted from previous documents and what he would like to see happen.

4. For her part, the response of the wife sought the dismissal of the application on an interim basis and for the final application to go to trial.  There was significant discussion about the fact that the defence, if I can describe it that way by the wife would be on the principles set out in Rice and Asplund.  Rice and Asplund, in my view, in this case does not apply. 

5. This case has a tortuous history in the Parramatta Registry of the Family Court of Australia. 

6. The reality is that it is now in Melbourne and it will be under my control for some time.  I propose to simply place it in the list at this stage and not give it a specific listing date.  It can wait its turn in the queue, having regard to the enormous amount of judicial time that these parties have had.  It seems also to me that there is now no urgency arising out of the proceedings, having regard to what I have canvassed with the parties this afternoon. 

7. This is a case about J who is about five years of age.  His father lives in Melbourne, although he travels back to Sydney and is hoping to live permanently with proper accommodation in Melbourne in the foreseeable future.  He has to find proper accommodation and a job.  The child’s mother lives in Melbourne as well.

RECORDED  :  NOT TRANSCRIBED

1. What has been ordered by the Court previously can be encapsulated in a couple of sentences.  The husband was to spend time with J (“the child”) under conditions.  Those conditions included disclosure of his mental-health status, as well as being restrained from using alcohol.  There was also a mandatory injunction requiring his taking prescribed medication.  In addition, the child’s time with his father was to be supervised by his paternal grandmother in Sydney.  The orders that seemed to prevail between the parties in the Parramatta court in April 2010, which I note were consent orders and presumably drafted by the parties or their lawyers, ironically enough expired when the child started school.

2. Notwithstanding all of the discussion today, it is quite apparent that there is no order in existence between the parties.  That gave rise to the need to try and work out arrangements pending the final determination. 

3. Immediately after the interim orders were made in the Parramatta Court, the parties ended up in the Magistrates Court.  Family violence orders were made against the husband, which had a remarkable similarity to orders to which he had consented in the April orders in the Parramatta court.  The problem was that the orders effectively precluded the husband from coming within 200 metres of the wife.

4. The Parramatta orders for time between father and son required a handover at the Avalon airport.  One can envisage a five year old boy trotting a space of 200 metres between his parents to avoid his father being arrested.  All of that nonsense now will stop because I propose to order, with the wife’s consent, for her to return to the Magistrates Court and by consent of both parties, to discharge that requirement.  That does not require the wife to discharge or seek to discharge the other requirement that the father behave himself.

5. If the father breaches any of the other conditions of the family violence intervention order made by that court, no doubt he will face the consequences.  To that end therefore, there will be an order to the effect that the husband and wife sign all necessary documents to discharge the relevant paragraph of the order to which I have referred.

6. The other absurd thing that has occurred is that the orders in April required the time between the husband and the child to be supervised by the paternal grandmother, yet there has been a period throughout 2011 where no orders were in existence, under which the wife handed the child to the husband at the Avalon airport, unsupervised by the paternal grandmother, and he flew back to Sydney and then repeated the trip at the other end of the weekend.  By some discussion and some common sense the parties have agreed to remove the supervision and replace it with the paternal grandmother being in substantial attendance.

7. There is no clear definition at law as to what substantial attendance means, but I have little doubt that it will become an issue in the trial if the parties do not work out amongst themselves – and that includes the paternal grandmother speaking to the wife – about exactly what her role will be. 

8. I propose therefore to make an order that the time in Sydney between the child and his father be at a place where the paternal grandmother can have substantial attendance. 

9. The other issue that caused angst between the parties was that in 2007 and 2008 orders were made, which on their face, seemed to be conditional orders that the husband provide a psychiatric assessment.  That has created problems for both parties, and there is now agreement that the husband will sign any necessary authority to the wife or her solicitor to obtain from his psychiatrist either in Sydney, or in due course in Melbourne, details of whether the ongoing treatment is continuing, and whether the psychiatrist is satisfied that the husband is compliant.  The same can obviously apply in respect of medication, but it is also important that the psychiatrist, whoever it might be, understands that there is a child involved.

10. The parties have otherwise agreed that the time between the child and his father will be every third weekend for the weekend, and I do not propose to set out any further details.  The husband had also sought, in his application, a block period over the summer holidays.  That is not consented to by the wife and is a matter that ultimately ought to be dealt with at trial.  It seems logical that I ought not do anything further about that today, having regard to the controversial nature of some of the evidence. 

11. The parties have used some common sense also in relation to an agreement that the child will spend two hours every Wednesday with his father.  His father will collect him from the school classroom and return him to the school at 5.30 pm, whereupon he will be handed over to the wife or to her agent.  If that is not to occur, then the father is to give the wife two weeks notice of his inability to comply. 

12. There has also been some discussion this afternoon about orders sought by the husband concerning payment by the wife to him, of amounts to cover travel expenses.  Having regard to the jurisdictional argument about that, it can wait until trial.

13. In those circumstances I will make some orders, and the parties can draft them. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 December 2011.

Associate: 

Date:  13 January 2012