LUCAS & CARLSON

[2012] FamCA 125

FAMILY COURT OF AUSTRALIA

LUCAS & CARLSON [2012] FamCA 125

FAMILY LAW – CHILDREN – interim

Family Law Act 1975 (Cth)

APPLICANT: Mr Lucas

RESPONDENT: Ms Carlson

INDEPENDENT CHILDREN’S LAWYER: Ms Meehan

FILE NUMBER: TVC 788 of 2010

DATE DELIVERED: 8 March 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Watts J

HEARING DATE: 8 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Betts

SOLICITOR FOR THE APPLICANT: Purcell Taylor Lawyers

COUNSEL FOR THE RESPONDENT: Mr Jacobs

SOLICITOR FOR THE RESPONDENT: Danielle Hodgens, Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M M Meehan

Orders

ORDERS AND NOTATIONS:

1. Orders made 14 October 2011 be amended as follows:

   1.1.Order 4(i) be amended by deleting it and inserting:

   “4(i)  From 8am to 6pm on the fourth Saturday of each month and from 8am to 6pm on the fourth Sunday of each month.”

   1.2.Orders 4(ii), 4(iii), 4(iv), 4(v) be deleted and insert a new Order 4(v) as follows:

   “4(v)  Contact be supervised by Ms C.”

   1.3.Order 4(vi) be deleted and insert:

   “4(vi)  There is to be no prohibition on M coming in contact with his half siblings nor Mr T.”

2. Order 4(viii) be discharged and instead telephone contact is to occur between the child and the father by the father telephoning the mother’s residence at the following times:

   2.1.Mondays, Wednesdays and Fridays between 5pm and 5.30pm;

   2.2.Sundays between 5pm and 5.30pm apart from the Sunday in each month that M spends time with his father.

3. The mother deliver M to the residence of Ms C at the commencement of contact and Ms C, in company with the father if he chooses, will return M to the residence of the mother at the conclusion at each of the monthly periods. 

4. Leave granted to the Independent Children’s Lawyer to provide to Dr E any material that has been filed in these proceedings, including the reports from Ms W and any document that has been produced as a result of any subpoena issued.

5. Leave granted to the Independent Children’s Lawyer to photocopy any subpoena material to facilitate the production of documents for Dr E.

6. The Independent Children's Lawyer, by arrangement with my associate, can relist this matter before me upon receipt of Dr E’s report.

7. The Independent Children's Lawyer liaise with the lawyers for the parties to discuss what further evidence still needs to be filed in order for a final hearing to take place.

8. The parties and the Independent Children's Lawyer prepare a draft trial plan based on what each party says they are going to rely upon by way of evidence and estimates of time each party might take to ask questions of witnesses and the Independent Children's Lawyer forward a copy of the trial plan to my associate 24 hours before the next occasion.

9. 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 Lucas & Carlson 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 CAIRNS

FILE NUMBER: TVC 788 of 2010

Mr Lucas

Applicant

And

Ms Carlson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The father filed an Application in a Case on 9 December 2011 seeking a variation of previous interim orders. The Independent Children's Lawyer fundamentally agrees with the father’s position.

2. What the father and the Independent Children's Lawyer are seeking is for the orders that were made by Justice Monteith on 4 October 2011 to be varied so that the child, M born in June 2007, spend time with the father the fourth weekend of every month from 8am Saturday to 6pm Saturday and from 8am Sunday to 6pm Sunday, with that contact to be supervised by the maternal aunt, Ms C. 

3. It is conceded by the mother that the father’s other children may be present during periods of time when the father sees the child under this arrangement.

4. The mother has from the bar table, changed the application that she was pressing up until this afternoon, from an application that Justice Monteith’s orders be varied so that the father spend no time with the child, to an application that the father spend from 9am to 5pm on Saturday and 9am to 4pm on Sunday with the child once a month. She does not object to Ms C being a supervisor.

5. It seems that in the context of the child’s time with the father there is no particular reason why the extra three hours should not be ordered and I will accept the recommendation of the Independent Children's Lawyer in relation to the time.  I note that the child is now older and is at school.  I do not think 5pm is too late to get him back to his mother in order to get him ready for school the next day.

6. In terms of supervision, the mother through her barrister today from the bar table, proposes a person whom she employs called Ms L, a person who I am told is a 39 year old single woman with two children, aged 15 and 9, who lives at Town A. The mother’s proposal is that the time the child spends take place at Ms L’s home.  This proposal obviously comes very much at the heel of the hunt in this interim application.  Neither counsel for the father or the Independent Children's Lawyer were given any notice about the application nor has any evidence been filed that would allow the father or the Independent Children's Lawyer to properly assess this proposal. 

7. The father originally proposed the mother’s brother (and Ms C’s husband) Mr T, as an alternate supervisor. The mother has detailed in her most recent affidavit her version of an incident that took place when she was pregnant in 2001.  Her version is untested, but on its face gives details of a serious incident between her brother Mr T and herself. There is no real need to complicate this matter by having Mr T involved in the supervision and I do not propose that he be a supervisor. He however is able to be present and does not need to leave his home during periods of time the child is at his home.

8. The orders that I make in the best interests of the child are to vary the current order that was made on 14 October 2011. 

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 8 March 2012.

Associate:   

Date:  13.3.2012