Malloy and Stopford Malloy (No 3)

[2020] FamCA 838

FAMILY COURT OF AUSTRALIA

MALLOY & STOPFORD MALLOY (NO. 3) [2020] FamCA 838

FAMIL LAW – PARENTING – Where consent orders were made in 2017 for the child to live with the mother and spend supervised time with the father – Where complications arose and as a result the supervised time with the father ceased – Where the father has not seen the child in two years – Where the father brings an Application in a Case seeking time with the child – Where the mother raises the principles in Rice & Asplund – Where there is no fresh evidence in relation to the child – Orders made for fresh expert evidence

Family Law Act 1975 (Cth) s 62G

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Stopford Malloy

RESPONDENT: Mr Malloy

FILE NUMBER: ADC 2595 of 2015

DATE DELIVERED: 14 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 14 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wells QC 
Mr McGinn of Counsel

SOLICITOR FOR THE APPLICANT: Piper Alderman

THE RESPONDENT IN PERSON: Mr Makris

Orders

1. An independent children’s lawyer (“ICL”) be appointed in these proceedings for the child C born … 2014, with the Court requesting that the Legal Services Commission of South Australia consider appointing Mr BQ as the ICL.

2. Pursuant to section 62G(2) of the Family Law Act 1975 (Cth) (“the Act”), the parties and the child of the relationship attend upon a Family Consultant nominated by the Adelaide Registry of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act.

3. The parties send copies of all of their court documents to the Family Consultant within three [3] days of being requested to do so by the Family Consultant.

4. For the purpose of completing a Family Report, the Family Consultant is granted leave to inspect the court file and all documents produced on subpoena (once leave to inspect has been granted to at least one other party in the matter).

5. I DIRECT the legal representatives for the parties, or the parties themselves if the parties are self-represented, confirm with the Family Consultant no later than ten [10] days prior to the scheduled interviews that the interviews will proceed on the dates allocated.

IT IS NOTED THAT:

A.The Family Report may be made available in late-January or early-February 2021.

IT IS FURTHER ORDERED THAT:

1. The parties take all necessary steps to comply with Order 27 made on 31 October 2017 by no later than 31 October 2020.

2. For the purposes of compliance with Order 5 made on 31 October 2017, the parties take all necessary steps to engage in a mediation, with such mediation to take place by no later than 15 January 2021.

3. The Respondent Husband’s Application in a Case filed 6 December 2019 be stood over to 25 January 2021 at 10:00am for mention by Microsoft Teams.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: ADC 2595 of 2015

Ms Stopford Malloy

Applicant

And

Mr Malloy

Respondent

REASONS FOR JUDGMENT

1. In proceedings ADC2595/2015 parenting orders were made on a final basis by consent by Hannam J on 31 October 2017.  Without descending into unnecessary detail, those orders provided for the mother to have sole parental responsibility of the child of the proceedings, C, born in 2014 to live with her and to spend time with the father in accordance with a particular regime.  The regime required supervision by two nominated supervisors.  The parenting aspect of the proceedings, which are extremely complicated in their financial aspect, rested there until the father filed an Application in a Case seeking to agitate new parenting orders which would give him contact with the child and for the child to spend time with him on a number of bases, all of which would be unsupervised.

2. The wife resisted that Application when it was listed before me on 14 September 2020.  After hearing the parties and after consideration of the material filed, I formed the view that no sensible alterations could be made to existing parenting orders without the assistance of an independent children’s lawyer and the preparation of a family report.  I note here that the orders made by Hannam J on 31 October 2017 specify that the parties should engage in a mediation to take place after 13 October 2018 for the purpose of reviewing the child’s time to be spent with the father from his fourth birthday, and that as part of the preparation for such a mediation the parties were to obtain a report of observations from supervisors at the husband’s expense, prior to such a mediation.

3. I am satisfied that before any further orders may be made in respect of the child, not only do the principles in Rice & Asplund (1979) FLC 90-725 have to be considered, but there needs to be assistance given to the court from an independent children’s lawyer and that a family report pursuant to section 62G of the Family Law Act 1975 (Cth) should be prepared in the Adelaide Registry of this Court. In forming that view, I have taken account of the submissions of the father that he has not seen the child for some two years, as well as the mother’s submission that the absence of the father from the child’s life is something that should be laid at the feet of the father and his failure to make use of the provisions for a mediated process set out in the orders of Hannam J made on 31 October 2017.

4. I form no view about these competing contentions but it is beyond dispute that the child has not seen his father for some two years, and that if the benefit of the child having a meaningful relationship with the father is to be sensibly considered, I need up-to-date evidence of an expert nature.  I also take account of the fact that the interests of the child are the paramount consideration and that I cannot in a peremptory fashion dismiss the contentions of the father that he should resume spending time with the child, which may upon more mature reflection, with the benefit of expert evidence, be something the court is ultimately satisfied should happen.  But as I say, I have formed no view about any of these matters at this point. 

5. For these reasons I make the orders and notations set out at the commencement of these reasons.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 14 September 2020

Associate: 

Date:  30 September 2020