Maitland and Maitland

[2007] FamCA 1366

FAMILY COURT OF AUSTRALIA

MAITLAND & MAITLAND [2007] FamCA 1366

FAMILY LAW – CHILDREN – Contravention application withdrawn – Interim suspension of parenting orders pending return of substantive proceedings before Guest J as less adversarial trial – Contact centre ordered

Family Law Act 1975 (Cth)

APPLICANT: Mr Maitland

RESPONDENT: Ms Maitland

INDEPENDENT CHILDREN’S LAWYER: Coadys

FILE NUMBER: DGF 421 of 2006

DATE DELIVERED: 29 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 29 October 2007

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: No Appearance

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms H. Dellidis

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Coadys

ORDERS:

IT IS ORDERED by consent on behalf of the husband and the independent children’s lawyer and not opposed by the wife:

1. That there be orders in terms of the Minutes of Consent Orders signed by the parties and dated 29 October 2007 (“the Minute”) as amended.

2. That the husband have leave to withdraw his contravention application filed 10 October 2007.

3. Paragraphs 2, 3, 4, and 5 of Orders made 3 August 2007 be suspended until further order.

4. That within 7days, the independent children’s lawyer forward by prepaid post an application for supervised contact at the Relationship Australia Children’s Contact Service in N to the husband at … and to the wife at ….

5. That each of the husband and wife do all things and sign all documents necessary to facilitate a referral of the family to the Relationships Australia Children’s Contact Service in N for supervised contact including, but not limited to:

   (a)Completing and returning to the independent children’s lawyer the application form referred to in paragraph 3 herein by no later than Monday 12 November 2007;

   (b)Attending for interview at the said Contact Service when invited to do so.

6. Upon receipt of the application forms from each of the parents pursuant to paragraph 5 herein, the independent children’s lawyer forward same to the Relationships Australia Children’s Contact Service in N, as soon as practicable.

7. Upon the referral of the family to the N Children’s Contact Service being accepted by the said service, the mother spend time with the child … born … June 1998 for not less than two (2) hours each fortnight on days and at times available at the said Centre, such time take place at, and be supervised by the said Centre.

8. That the husband’s Application in a Case (erroneously headed Amended Response to an Application in a Case) filed 25 October 2007 be otherwise dismissed without prejudice to the husband seeking before Guest J any order as to psychiatric or psychological assessment of the wife. 

9. In the event that the wife does not attend Court on 3 December 2007 at 10am, the husband have leave to seek the summary dismissal of any application by the wife and that his application for final orders proceed to determination on an unopposed basis on that date.

10. The husband file and serve by no later than Monday 12 November 2007 any Amended Response to an Application for Final Orders setting out the Orders he shall seek on 3 December 2007.

11. The independent children’s lawyer serve a sealed copy of these Orders upon the wife by sending them by prepaid post addressed to the wife at ….

12. Certify for Counsel. 

13. That until further order service of documents on the wife is deemed to be effected if sent by prepaid post addressed to the wife at ….

14. That in the event that the wife wishes to nominate another address for service, other than …, she file and serve a Notice of Address for Service immediately. 

15. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties.

AND THE COURT NOTES that in the event that the wife fails to attend Court on 3 December 2007 the Court may hear the husband’s application or amended application to vary the wife’s time with the child without the wife’s point of view being heard and as a final determination of all matters in issue between the parties.

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Maitland & Maitland.  

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 421 of 2006

MR MAITLAND  

Applicant

And

MS MAITLAND  

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter of Maitland comes before me in the judicial duty list. The substantive proceedings appear to be allocated to Guest J as a less adversarial trial matter for which the next mention is on 3 December 2007. The proceedings concern the child born in June 1998.  

2. Today, the applicant father appears in person.  There is no appearance by, or on behalf of, the mother.  The mother was called at the door of the court and there was no response.  Ms Dellidis of counsel appears on behalf of the independent children’s lawyer.  

3. The current parenting order was made by Guest J, by consent, on 3 August 2007.  Relevantly, it provides that:

   [2].That until further order the child […] born […] June 1998 spend time with the wife as follows:-

   (a)   on 12 August 2007, 26 August 2007, 8 September 2007 (being Saturday), 23 September 2007 and 7 October 2007 from 10.00am until 5.00pm.

   (b)  on the weekends commencing 21 October 2007, 4 November 2007, 18 November 2007, 2 December 2007 and 16 December 2007 from 10.00am Saturday until 5.00pm Sunday.

   (c)  as otherwise agreed in writing.

   [3].That all changeovers occur outside the [N] Police Station.

   [4].That all time be conditional upon the wife:

   (a)   undertaking an alcohol breath test analysis in the presence of the husband and the officer on duty at [N] Police Station.

   (b)  such alcohol breath teat analysis a reading not greater than 0.01% BAC (being an allowance of 0.00% BAC reading plus a possible error reading).

   (c)  advising the husband by 5.00pm the Friday prior of the address for overnight time pursuant to order 2(b) herein, such notice to be sent to the husband’s email address of  […].

   [5]. That the wife forthwith purchase an AL6000 breath test analysis machine for the purpose of undertaking the tests in order 4(a) herein.

4. Before the court today is the husband's application to have the mother dealt with for contravention of the current parenting order. The contravention application was filed on 10 October 2007.  Broadly speaking, the alleged failures to comply fall into two categories. 

   a)First, on five occasions the mother refused to participate in a breath test to detect the use of alcohol during a change over or at the end of a time she was to spend with the child.  In discussion between myself and the independent children's lawyer it was not made apparent to me how that contravened any order at the moment.  The requirement that the mother submit to breath testing is a precondition to her spending time, it is not a stand alone order.  Non compliance by the mother with that order disentitles her to being able to spend time with the child.  Failure by her to comply with the order is not punishable as a contravention. 

   b)Second, it alleged was that the mother had failed to purchase a breath test analysis machine.  That does appear to be a matter required of her pursuant to paragraph 5 of the orders made by Guest J on 3 August 2007.  If it is proved that the mother has failed to comply with that order, that could be punishable as a contravention subject to my discretion not to impose any penalty.

5. In any event, the father has elected today to withdraw his contravention application and to proceed with substantive matters. 

6. The father has also filed a response to an application in a case (which should have been called an amended application or some such thing).  It was filed on 25 October 2007 and is made returnable today.  In it, the father seeks a variation of the orders providing that the mother spend time with the child.  He wants the time to be supervised.  He also seeks child support and he seeks to have the mother psychiatrically or psychologically assessed. 

7. Child support for the time being falls outside the jurisdiction of this Court. 

8. On an unopposed basis the orders will be changed so that the parties are able to make application to N contact centre for the mother to have supervised time with the child there.  I am satisfied that the mother has adequate notice of the father’s application that “all contact between [the mother] and [the child] be supervised at a location agreeable by both parties.”  The mother is not at court today.  She does not “agree” but she does not propose an alternative either. 

9. In any event, I have only suspended the spend time with orders made by Guest J on the last occasion.  Guest J may effect a further adjustment when the matter comes before him again.  

10. I have not dealt with the father's application to have the mother psychologically or psychiatrically assessed.  The father agreed to a dismissal of his application but that is to be without prejudice to subsequently seek such an assessment before Guest J. 

11. The only other matter to note is that, in the event that the mother does not participate on the next day (3 December 2007) then Guest J may be prepared to determine the matter finally and final orders can be made in the mother's absence.  For today's purposes the mother was called at the door of the court at 10:50am and there was no response to the call.  

12. Finally, the father made oral application in relation to service.  He says that it has been difficult to serve the mother with further documents such as a further amended application.  However, last Wednesday a process server confirmed that the mother was residing at …, and the father seems to have some independent knowledge that she has taken a lease or a sublease at those premises.  

13. I observe that it would be in furtherance of the child’s best interests for the independent children’s lawyer to impress upon the mother the need for her to attend court on 3 December 2007 in the event that she wants input into the further listing or determination of the matter.  

14. That concludes my comments. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  22 November 2007