Machaut and Bellini

[2016] FamCA 479

FAMILY COURT OF AUSTRALIA

MACHAUT & BELLINI [2016] FamCA 479

FAMILY LAW – INTERIM PARENTING ORDER – mother’s urgent application to spend time with child – mother not having spent time with child since father collected child from Country D ten months ago – time to be spent in Australia during and after family report interviews – application otherwise adjourned. 

APPLICANT: Ms Machaut

RESPONDENT: Mr Bellini

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Hams

FILE NUMBER: MLC 346 of 2014

DATE DELIVERED: 13 May 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Milford

SOLICITOR FOR THE APPLICANT: Aughtersons

COUNSEL FOR THE RESPONDENT: Ms Mr Bellini in person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mr Bellini in person	Ms Glaister
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Glezer Lanteri & Associates

Orders

IT IS ORDERED THAT

1.There be leave to the mother to proceed today with her application for urgent parenting orders taking into account that she arrives in Australia on 18 June 2016 and there are family report interviews for the parents and child B born … 2010 (“the child”) on 20 June 2016.

2.I otherwise adjourn the mother’s Application in a Case filed 9 May 2016 to 22 June 2016 at 9.00 am for an interim defended hearing (“the hearing”).

3.The father file and serve any response to the mother’s application and any evidence in support and orders sought by him by not later than 4.00 pm on 21 June 2016.

4.Until the hearing on 22 June 2016, the mother spend time with the child as follows:-

a)      from 10.00 am on Sunday 19 June 2016 until the commencement of the interviews with the family consultant in this Registry on 20 June 2016;

b)      from the conclusion of the interviews by the family consultant at this Registry of the Court on 20 June 2016 until 10.00 am on 22 June 2016; and

c)      as may otherwise be agreed between the parties and confirmed in writing.

5.The changeover point for the time referred to in paragraph 4(a) above be inside the McDonalds Family Restaurant Suburb C in the State of Victoria.

6.The changeover point for the return of the child following the time spent referred to in paragraph 4(b) above be the Child Dispute Services reception area on Level 5 of this Registry of the Court and the mother place the child in the Children’s Playroom of this Registry of the Court to abide any further order of the Court.

7.The mother do all acts and things necessary to bring the child to Level 5 of this Registry of the Court on 20 June 2016 to participate in the assessment interviews during which time it is expected that the child will be able to see the father under the direction of the Family Consultant.

8.Until further order, the mother and the father be and are hereby mutually restrained by injunction from:-

a)      denigrating the other parent in the presence or hearing of the child; and

b)      discussing with the child, or in the presence or hearing of the child, the parenting arrangements, including with whom she should live or spend time.

9.That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

IT IS DIRECTED:

10.That my Associate make a booking with the Children’s Playroom of this Registry of the Court for the child on 22 June 2016.

11.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

AND IT IS NOTED that the lawyer for the father informed the Court that the father has no arrangements to take the child away from the Melbourne area in the forthcoming school holiday period.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Machaut & Bellini 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: MLC 346 of 2014

Ms Machaut

Applicant

And

Mr Bellini

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Ex-Tempore

1. The matter comes before me as an urgent application. Weeks ago the Court received the mother’s application to arrange time with the parties’ daughter B born in 2010 (“the child”) during her visit from Country D to Australia for the purpose of preparation of the family report. 

2. By virtue of matters for which neither parent nor the independent children’s lawyer are responsible, the mother’s application has not been formally listed for hearing. Indeed, the practitioners for the husband only received notice of the mother’s application yesterday. The mother’s application seeks a period of two weeks with the child whilst the mother is in Australia. However, as matters have fallen into place, that is not the order that I have considered today.

3. Today, with the assistance of the independent children’s lawyer and counsel for the independent children’s lawyer attending upon Child Dispute Services, the independent children’s lawyer has put a proposal in relation to immediate parenting arrangements whereby the child would see the mother.

4. I will not go into a history of the matter however the last occasion on which the child saw the mother was on, or about, 26 July 2015 when the father collected the child from the mother in Country D. There has been some telephone communication between the child and the mother since then. The mother says it is not satisfactory communication but there has been some communication.

5. The next relevant fact is that on 20 June 2016 Ms E, Family Consultant, will conduct interviews with the parents and the child in this Registry. The mother will arrive in Australia two days prior to that on 18 June 2016.

6. The proposal and recommendation of the independent children’s lawyer is that the mother spend time with the child from 10 am on 19 June 2016 until the attendance of the mother and the child at court for the family report assessment interviews on 20 June 2016 and that the matter come before me on 22 June 2016 when I can give further consideration to what time or communication there should be between the child and the mother for the balance of the mother’s stay in Australia. 

7. The mother agrees to that proposal as a temporary, urgent measure but obviously seeks to pursue more extensive time with the child after the family report interviews are conducted in the Court.

8. The father’s proposal as outlined by his solicitor, Mr Milford, is that the mother collect the child at 10 am on 19 June 2016 but return her to the father at 6.30 pm on that day. He says that this will ensure some regularity in the child’s bedtime of 8 pm and avoid a situation where in excitement or anticipation or something the child does not get to sleep on time. The father’s proposal, therefore, is to bring the child to the Court on 20 June 2016 however he says that following the appointment on 20 June 2016 the mother can have the child until 22 June 2016.

9. The father also seeks a mutual non-denigration order and that there be no discussion by either party with the child about future parenting arrangements or where the child should live into the future.

10. I have clarified with the parties that for today’s purposes they do not wish to be further heard, nor cross-examine any social scientist or the family consultant to whom counsel for the independent children’s lawyer referred in her submissions. 

11. I commend the parties for taking the sensible course and proceeding with a fairly abridged hearing to determine when and how the child will see the mother initially. I do have an opportunity of looking at the matter on 22 June 2016 although I stress that it will be only for some brief time on that day and that I am not available after that day for the next two weeks.

12. As with all parenting matters I give paramount consideration to the child’s best interests. In determining what is in the child’s best interests I follow the legislative pathway set out in Part IV of the Act. It requires me to make orders which keep the child safe from any physical or psychological harm and obtain for the child what benefit there is in having a meaningful relationship with both parents. In this case neither of those primary considerations indicates that there should not be time, and indeed overnight time, between the mother and the child. This is a more nuanced case but still one in which I must take into account the fact that the child has not seen the mother for an extended period. That is, since last July; indeed a long time in the life of a five year old.

13. I have not had any submissions or evidence in relation to the views of the child but she is a child of tender years, probably disinclined to change but curious about seeing her mother. I simply do not know.

14. I certainly take into account the impact of changes on the child but she is five years old, she is going to preparatory school at the moment. She is used to being separated from the father or, indeed, her primary carer for an extended period each day. She would have a sense of time and be able to understand what is likely to go on the next day.

15. In the circumstances of this case, I am persuaded by the independent children’s lawyer that the first period of time between the mother and the child should include overnight and should occur on 19 June 2016.

16. I am also persuaded that it should be more extensive than just that night and would, therefore, continue the time after the family report interview until 22 June 2016 when the mother will bring the child to court, place the child in the child-minding room and the parties can agree, or get a decision from me, about what will happen for the remainder of the mother’s stay.

17. In saying that the mother will have the child from 19 June to 22 June 2016, I am aware and take into account that one day will be spent in the Registry for family report interviews. The child will see the father on that day and so it will in effect be broken time, but time in which she will reacquaint herself with the father and be secure in the knowledge that he is there and she will be returning to his care.

18. I am satisfied that the Order I have made is in the child’s best interests. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 13 May 2016.

Legal Associate:

Date: 15 June 2016