Martin and Nanon

[2012] FamCA 307

FAMILY COURT OF AUSTRALIA

MARTIN & NANON [2012] FamCA 307

FAMILY LAW – CHILDREN - Interim orders - removal of supervision of parent because of lack of evidence.

Family Law Act 1975 (Cth)

APPLICANT: Mr Martin

RESPONDENT: Ms Nanon

INDEPENDENT CHIILDREN’S LAWYER

FILE NUMBER: MLC 6566 of 2010

DATE DELIVERED: 1 February 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Smith

SOLICITOR FOR THE APPLICANT: Fraser Nevett & Frawley

COUNSEL FOR THE RESPONDENT: Ms Buchanan

SOLICITOR FOR THE RESPONDENT: Heinz & Partners

COUNSEL FOR THE RESPONDENT: Ms Clark

SOLICITOR FOR THE RESPONDENT: Cathleen Corridon & Associates

Orders

1. That paragraph 1(b) of the orders made on 26 November 2010 are varied such that the maternal grandmother is to be in substantial attendance throughout the periods of times referred to in the orders.

2. That the reasons for judgment this day be transcribed.

3. That all applications for final orders be adjourned for hearing before Justice Cronin at 10 am on 31 May 2012 as a two day matter (subject to any part-heard matters).

4. That by 4 pm on 2 March 2012 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought; and

   (b)the affidavits of evidence in chief of all witnesses relied upon.

5. That the applicant pay all setting down and trial fees by 4 pm on 2 March 2012.

6. That by 4 pm on 23 March 2012 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision what orders are being sought; and

   (b)the affidavits of evidence in chief of all witnesses relied upon.

7. That by 4 pm on 30 March 2012 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

8. That no party file any further material other than as provided by these orders without leave of the Court.

9. That pursuant to s 62G (2) of the Act, the parties and the children attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services of the Melbourne Registry for the purposes of the preparation of a family report not to be commenced until after 1 April 2012 but to be completed and released by 30 April 2012.

10. That the Family Consultant be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.

11. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

12. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

13. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar, the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

14. That the practitioners for the parties file and serve electronically to …@familycourt.gov.au by 4 pm on 25 May 2012 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon; and

    (c)a bullet-point summary of argument in relation to the issues in dispute.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Nanon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 6566 of 2010

Mr Martin

Applicant

And

Ms Nanon

Respondent

REASONS FOR JUDGMENT

1. This is an interim application to vary the existing parenting arrangements.

2. It is an application for there to be time between B, who is just five years of age, and his mother, with whom he does not live, on an arrangement which seems to have ceased in June 2011. 

3. I find the evidence quite perplexing.  I am not clear why Riethmuller FM on 26 November 2010 ordered that the mother’s time with the child occur in the presence of the maternal grandmother.  The maternal grandmother was not a party to the proceedings.  There is no indication that any undertakings were given, and more importantly, I do not know the reasons why the child’s time with his mother was made conditional. 

4. A significant period of time seems to have passed, and the relationship between the mother and son seems to be floundering.  It is floundering at a time just prior to trial. 

5. What was said was that there had been no serious contact between mother and child since June 2011, but the evidence would appear to suggest otherwise. 

6. I take into account in this particular case a couple of things that are very important.  The first is that there is another child who is not that many more years older than B who is living with the maternal grandmother but spends significant periods of time with his mother.  That very arrangement must have been put in place for a particular reason, but all of the evidence says that it is not a problem and there is a flexible arrangement between the mother and that child. 

7. I am puzzled as to what the problem is relating to the mother and B.  There are certainly allegations made that the mother has a problem with drugs.  The grandmother, who sees the mother on a number of occasions each week, says she has not seen any sign of that, and there is no indication as to what other problems there are. 

8. Drug screens might give some indication, and they have not been happening, but that is only one issue that needs to be considered. 

9. The fundamental question in this case is that a parenting order should only be made if it is in the best interests of the child.  The grandmother has given evidence and been cross-examined.  It has not been put to her with any specificity what she failed to do.  She allowed the mother 30 to 45 minutes to take B away somewhere.  Whether that is inconsistent with the order of Riethmuller FM of 26 November 2010 I am not at all clear.  To the extent that it was put to her that there were a number of other occasions where there was no supervision, she has been emphatic in her denials. 

10. The grandmother is a qualified healthcare worker and I would presume she understands mandatory reporting.  I had intended to have her give evidence for the purposes of extracting some form of undertaking from her.  I fail to see why that would be necessary in this case.  I fail to understand what the purpose is of her presence to supervise the mother.

11. In my view, what should happen here is that this child should have time with his mother in accordance with the orders of Riethmuller FM and that the grandmother should be in substantial attendance.  Substantial attendance means monitoring what is happening to ensure that the child is not in any way distressed or manipulated in any way.

12. There is no evidence of real concern by the Independent Children's Lawyer.  The father’s evidence is that something that has happened in the past is continuing but it is short on detail.  On that basis I intend to alter the orders of Riethmuller FM to remove the words “in the presence of” and substitute in that sentence the words “such time is to be with the substantial attendance of the maternal grandmother”.  To the extent that the Department of Human Services is unhappy about that arrangement, they had been invited by the Federal Magistrate in 2010 to intervene, and I note they have not.  If they are now concerned with that order, they can take the necessary steps and the matter can be revisited.  

13. On that basis I propose to make those orders pending a trial which seems to me in this case needs to happen with some speed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 February 2012.

Associate: 

Date:  17 April 2012