MARSDEN & SIPOS

[2015] FamCA 320

FAMILY COURT OF AUSTRALIA

MARSDEN & SIPOS [2015] FamCA 320

FAMILY LAW – CHILDREN- Application by mother to spend unsupervised time with child – application adjourned for determination at the final hearing – Order that child communicate with mother via skype, letters and cards – Restraining Orders –

FAMILY LAW – PRACTICE AND PROCEDURE – Orders made for the filing of affidavit material

APPLICANT: Ms Marsden

RESPONDENT: Mr Sipos

INDEPENDENT CHILDREN’S LAWYER: Mr Fitzgerald

FILE NUMBER: SYC 639 of 2012

DATE DELIVERED: 24 April 2015

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 24 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Eddington

SOLICITOR FOR THE APPLICANT: PWB Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Marsden in person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Fitzgerald

Legal Aid Commission of Tasmania

1. BY CONSENT the mother’s application in a case and the father’s response to the application in a case be adjourned to 10.00am on Monday 14 September 2015.

2. The time for filing affidavits by the parties and/or detailing the affidavits the parties wish to rely upon be extended from 24 July 2015 to 14 August 2015.

IT IS DIRECTED

1. The Independent Children’s Lawyer shall forward to the mother a copy of the orders made by the Court on 29 January 2015.

IT IS NOTED

1. The mother continues to assert that there are no mental health issues to which the Court should have concern.

IT IS FURTHER ORDERED

UNTIL FURTHER ORDER

1. The child B born … 2010 (‘the child’) shall communicate with the mother by Skype each Sunday between 6.30pm and 7.00pm.

2. Neither party shall denigrate the other party or members of the other parties’ family in the presence or hearing of the child and in the course of the Skype communications neither party raise with the child in discussions or within the child’s hearing these proceedings or the future parenting arrangements of the child.

3. The mother is permitted to forward letters and cards to the child care of the child’s current address subject to:-

   (a)the father being permitted to open and read any such letters, cards and presents; and

   (b)if the father considers that they are inappropriate he will do the following:-

   (i)inform the mother in writing of the reason he considers that they are inappropriate; and

   (ii)inform the Independent Children’s Lawyer and forward such letter, card or present to the Independent Children’s Lawyer.

4. 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 DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the Court file.

IT IS FURTHER NOTED

1. Should either party or the Independent Children’s Lawyer wish for witnesses to give evidence by telephone or videolink, they will inform the Independent Children’s Lawyer who should then inform the Case Co-ordinator if it is by agreement and orders can be made in chambers, or if not by agreement leave be given for the matter to be listed on the giving of short notice.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsden and Sipos 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 HOBART

FILE NUMBER: SYC 6392 of 2012

Ms Marsden

Applicant

And

Mr Sipos

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. There is an application in a case before me by the mother for her time with the child, B, aged five to be, in essence, restored.  This is a matter where I gave reasons on the last occasion.  There was a history of the child being removed from Tasmania and removed from the care of the father by the mother without the father’s consent and without the consent of the Court or the Independent Children’s Lawyer.  It was necessary for the child to be recovered in circumstances where there are issues of fact in that regard.  The mother says that the police were harsh and this added to the impact on the child.  The father’s evidence is that the child was being hidden, the child was distressed and that the child had been given medication of some description.  Those are facts in issue, those latter parts. 

2. The mother seeks to adjourn the proceedings, and I raised with her a number of issues: firstly, that an adjournment would probably mean that the interim application would be folded into the final application.  The mother acknowledged that.  I raised with the mother the question of her seeing the child in advance of the appointment with the Family Consultant which is on Tuesday, 21 July 2015.  The mother was wishing to see the child, but in circumstances where the child was left in her, essentially, unsupervised care.  She did not wish to pursue seeing the child in a supervised way and looks forward to seeing the child.  I raised with the mother the question of supervised time, but her view was that she wanted to spend that time with the child on an unsupervised basis, as far as I am able to understand. 

3. The mother has in her submissions shown limited insight into the impact of the events over the last few weeks or few months.  In any event, she will be seeing the child in the presence of the Family Consultant on 21 July 2015.  The mother sought an order that the Skype communication between herself and the child be restored.  The father consents to that order.  Accordingly, I will make that order and also orders regarding letters and cards.  However, I will put in place some protective measures as sought by the father and the Independent Children’s Lawyer.  I note that since the matter last came before the Court there are proceedings in the State Magistrates Court in relation to the father’s partner. 

4. The mother seeks orders that her friends, Mr D and Ms D, spend time with the child.  There is not sufficient evidence from the mother or any of the parties in relation to that arrangement, and, given the events of recent months, I am not satisfied at this stage that that is an appropriate course.  It may be something that the mother will raise at the final hearing of these proceedings. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 24 April 2015.

Associate:     

Date:              24 April 2015