Maddison and Maddison

[2014] FamCA 932

FAMILY COURT OF AUSTRALIA

MADDISON & MADDISON [2014] FamCA 932

FAMILY LAW – Matter allocated to docket for final hearing – more beneficial to grant an adjournment of final hearing – matter to be reviewed in February 2015

APPLICANT: Ms Maddison

RESPONDENT: Mr Maddison

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr M Weston

FILE NUMBER: MLC 274 of 2007

DATE DELIVERED: 27 October 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 27 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bradley

SOLICITOR FOR THE APPLICANT: Shamrock Woodland Lawyers

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Paterson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Perry Weston

Orders

IT IS ORDERED THAT

1. Until further order, this matter not be fixed for final hearing at this stage due to ongoing discussion and collaboration between the parents.

2. This matter be further listed for mention before me on Friday 6 February 2015 at 9.00 am for review.

3. There be liberty to each party to apply in relation to urgent parenting orders for education, spending time or like matters and, for that purpose, either party wishing to do so should contact the independent children’s lawyer and advise him of that fact and the independent children’ lawyer may liaise with my Associate to have a court date appointed.

4. By not later than 12.00 noon on 12 November 2014 the mother provide to the independent children’s lawyer and, if she has not already done so, to the father details of the following matters in relation to the child C born … 2001:-

   a)The arrangements and, if known, the outcome of the academic assessment of the child concerning the appropriateness of him being enrolled in Year 8 in 2015;

   b)Details of when the child will return to see Ms E, counsellor, and, if known, any recommendations Ms E makes in relation to ongoing treatment for the child;

   c)The school in which the child will be enrolled in 2015 and the year level at which he will attend that school.

5. Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrars Riddiford or Sikiotis for the return of subpoena or on any date notified to the parties by my Chambers for the return of subpoena(s).

6. I reserve to the adjourned date the question of further reportable assessments and in particular the preparation of a family report.

7. The evidence of the mother given this day be transcribed and when transcribed a copy be placed on the Court file and sent to each party to the proceedings.

8. My reasons for decision be transcribed and when settled be published to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maddison & Maddison 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 274 of 2007

Ms Maddison

Applicant

And

Mr Maddison

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before me as a first day matter, it having been allocated to my docket and now being thought by the court to be ready for hearing.  The proceedings concern two boys:  D who is 11 and a half and the child who is 13 and a half. 

2. There is a long history of court proceedings which in 2008 culminated in final orders being made where the children, then aged approximately seven and five years, lived primarily with the father.  In 2011, the children were removed from the father’s care and placed with the father’s former partner, Ms S, and then in April 2012, the child commenced living with his mother on a full-time basis and D was shortly thereafter returned to his father’s care. 

3. I have had the benefit of reading the Children and Parents Issues Assessment prepared by Mr V, family consultant, dated 3 March 2014. 

4. These reasons will deal with matters that are not canvassed in the Children and Parents Issues Assessment.  Reading between the lines and having heard from each party briefly today, it appears that both have concerns about Ms S’s care of the boys.  Very happily, the extremely poor parental relationship which is described by Mr V in the Children and Parents Issues Assessment has started to thaw and each party presents today as sincerely wanting to continue their positive relationship with all the benefits that that positive relationship entails for both boys. 

5. The parties, the mother and the father, have started to talk face to face, they text very frequently and they also talk to each other by telephone.  Mr V opined that it was necessary for the boys to see more of one another than they were at that time.  The parents have managed to surpass anything that Mr V was contemplating.  There is a supervised indoor skate park facility called “The Park” at Suburb A.  The boys are now meeting up approximately twice per week and spending five hours there in a supervised atmosphere. 

6. The boys have also attended some camps organised during school holidays by the supervisors at The Park, thereby being able to spend overnight time with each other. 

7. The solicitor for the mother had prepared a minute of order which he asked the parties to consider and that minute of order contemplated the boys spending weekends with either their paternal aunt (Ms P Maddison) or the wife’s cousin (Ms B).  We didn’t investigate that proposal in our discussion but it may well be something that the parents are prepared to talk about in the future. 

8. D at the moment is in Grade 5 at F Town Primary School.  He enjoys football, cricket and obviously skateboarding.  He’s good at English and Maths. 

9. Until June this year, the child was attending Year 7 at Suburb G Secondary College.  In June this year, the mother formed the view that the child was not emotionally fit enough to continue with school.  He was breaking down, crying, and she said was simply not up to the rigours of the curriculum.  Since that time, the child has been going to work with his mother and being home schooled. The mother remains hopeful that the child may return to mainstream school in 2015.   Until March 2014, the child was seeing Ms E who is a counsellor.  D had seen Ms E on one occasion as well.  In March 2014, the child told his mother or his mother independently formed the view that he didn’t need to see Ms E anymore and he hasn’t done so. 

10. It concerns me somewhat that the child withdrew from counselling and then three months later was thought not to be in an appropriate frame of mind to continue at mainstream school. 

11. I’ve had the benefit of having some direct discussion with the mother, who gave some evidence today in relation to the child’s circumstances.  That evidence was transcribed.  Ms Maddison works for her mother in a family business.  The busiest time of the year for her is from June till the end of October.  She acknowledges that there are a number of things that she will have to attend to very promptly in November 2014 concerning the child and his schooling. 

12. First of all, she will need to get back in contact with the Year 7 coordinator at Suburb G Secondary College and arrange for the child to be assessed academically as to whether or not it is appropriate for him to return to school in 2015 into Year 8 or into Year 7.  Very sensibly, the mother acknowledges that if the child has to repeat Year 7, she will give consideration to him doing so at another school which would then become the school at which he hopefully completes his secondary school career. 

13. The next matter that the mother will turn her mind to as soon as possible is a further appointment for the child with Ms E. 

14. Just as it’s important that the child be assessed academically to see how he’s travelling in anticipation of 2015, it is also important that he be assessed emotionally to see the impact of his time away from school and whether or not he will be fit and well enough to go back to school in 2015.  It seems to me that an assessment by a clinician who has some familiarity with him and with the family circumstance is likely to assist.  The next matter that the mother has to attend to is to make arrangements for the child to be enrolled in school in 2015.  If the child is assessed as being appropriate for Year 8 at Suburb G Secondary College, it may be that he attends there.  If not, there will be the process of selecting another school for the child at which he enters at Year 7. 

15. The mother lives at Suburb H and the father lives at Suburb I.  They are some 25 minutes apart.  It seems to me that the parents could give some thought to eventually the children being able to attend the same secondary school.  The difficulty is that whilst the parents live only 25 minutes apart now, the mother’s place of employment is some 45 minutes away from a school other than Suburb G Secondary College.  Anyway, we will see the results of the work the mother is now going to undertake. 

16. It’s important that the very good and commendable communication which is now passing between the parents continues.  However, it’s important that if that breaks down, the parties know that they can come back to court.  I would envisage it would be necessary for them to do so because if their communication breaks down, I think that the extra communication and time that the children are managing to spend with each other may also be a casualty or may be a casualty of the deterioration in the parental relationship. 

17. The court would most certainly accept an interim application for parenting orders in the event that the parents are not able to agree when and how the children should see each other and when and how the children should see the other parent, if that becomes appropriate. 

18. As indicated, both parents acknowledge in a fairly heartfelt way the benefits to the children of their improved relationship.  I have indicated that the next step seems to me to secure some level of cooperation between the parents which is visible to the children in the context of the children’s educational life – that is, at their schools. 

19. This matter was allocated to my docket for final hearing.  It’s apparent from the matters of which I have learnt today that the best thing to do for the family is to give them some further time, uninterrupted by litigation, to see the extent to which they can fix themselves before the court has a go at it.  Case management principles must work to achieve a result which is consistent with the children’s best interests. It is not in the children’s best interests to proceed to final hearing now.

20. If there’s some need for urgent orders, the parties should come back to court via the independent children’s lawyer who will be able to contact my Associate.  If not, the matter can wait until after the next school year has commenced, which is early February 2015.  I have put the matter over for mention then and then we will assess whether the parties are in dispute at all and if they are in dispute, how the further hearing of the matter should proceed. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 27 October 2014.

Legal Associate:

Date:  31 October 2014