Mason and Wilson

[2007] FamCA 1250

FAMILY COURT OF AUSTRALIA

MASON & WILSON [2007] FamCA 1250

FAMILY LAW – CHILDREN – Interim Orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Mason

RESPONDENT: Mr Wilson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6729 of 2007

DATE DELIVERED: 12 October 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 12 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Skerlj

SOLICITOR FOR THE APPLICANT: JKB Lawyers

COUNSEL FOR THE RESPONDENT: Mr Brewer

SOLICITOR FOR THE RESPONDENT: Patricia Sampson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O'Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ryan Carlisle Thomas

ORDERS

1. THAT the father forthwith attend upon a general medical practitioner to obtain a referral to a treating psychiatrist, other than Mr G, for the purposes of then conferring with that specialist and for an assessment and monitoring of the father's medication and receiving appropriate psychotherapy.

IT IS FURTHER ORDERED:

1. THAT all extant applications be adjourned for mention before Young J on 27 November 2007 at 10.00 a.m. (specifically this is for the purposes of a mention and not as a second hearing under the less adversarial procedure).

2. The extempore reasons for judgment be transcribed, be placed upon the court file and be made available to all parties

3. THAT the reasons for judgment be transcribed, placed on the court file and made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Mason & Wilson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6729 of 2007

MS MASON

Applicant

And

MR WILSON  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Mason & Wilson is listed before me as the first day in a less adversarial hearing process.  Mr Skerlj of counsel appears for the mother, Mr Brewer of counsel appears for the father, and Mr O'Connell appears as counsel for the Independent Children's Lawyer.  Both parties are in court.  There are two children of the relationship, J, born in July 2001 and now six years of age, and N, born in November 2003, approaching four years of age.

2. The father is 50 years of age, the mother 28 years of age.  They lived in a de facto relationship for approximately six years. The father is not the biological father of the child, N.  His father is Mr S, who has earlier been served with documents in this case but did not answer a call to attend court, has not appeared in court and has no contact or involvement with N.  It does seem to be the position of both the mother and the father that this case should proceed without any further notice to or involvement of that person and I now accept that outcome.

3. The most recent order in this court was that made by Mushin J on 12 September 2007, where he directed priority to this matter and it was therefore listed before me this day.  Before that order was made there is a lengthy history in the Federal Magistrates Court and in this court.  The order of most significance is that of the Senior Registrar pronounced 31 July 2007 and it is pursuant to that order that the father currently spends time with and communicates with both children for three hours a fortnight on a Saturday and on a supervised basis and otherwise has or should have telephone time with both children for half an hour on each Tuesday and Thursday. 

4. The orders of the Senior Registrar discharge earlier orders, though leaves alive the requirement for the children to live with the mother.  There are particular orders as to the circumstances of the time to be spent, the injunctions in paragraphs 3, 4 and 5 of the order and then the further treatment and medical‑related orders that the father was to undertake in paragraphs 7, 8 and 9 thereof. 

5. In the extempore judgment of the Senior Registrar, there is on page 4 in paragraph 10 a summary of the various affidavits, reports and medical evidence before the court. Some of those matters contain relevant evidence and information.  Some of them will need to be updated.  In all of those issues, there are very real financial concerns as to the cost of such consultation and treatment, and also as to the emotional risks that may be present from the children's point of view.

6. When the matter came before me today I read each of the questionnaires that were completed by the mother and father. I specifically refrained from otherwise reading much of the substantial documentation earlier filed in the Federal Magistrates Court or in this court.

7. The father is in default in terms of the directions and actions required pursuant to paragraphs 7 and 8 of that 31 July 2007 order.  I do have a very real concern as to the preparation of this matter, when issues will be ready for hearing, what evidence will be obtained or responded to and from a time management issue, when this matter can and will be listed for a further hearing on a final basis.  I do not propose today to have any updated report from Ms Y. I specifically reserve the issue for determination as to whether that family consultant should prepare any additional report or whether a consultant from within this court should prepare and present a report.

8. Ms H, family consultant, has been in the back of the court for much of the hearing this day but I have not involved her in the proceedings, given the outstanding medical issues and evidence and I have not directed at this stage that she prepare any fresh family report. 

9. I am also aware but have not read the affidavit of Ms F who is the supervisor of the three hours a fortnight.  That is undertaken at the cost of the father and it also is likely a very real issue in this case.  I have indicated to the parties and it seems to be accepted that the father must do all acts and things to at least submit his name to contact centre waiting lists in W and R and in that regard I require the mother to fully cooperate. Whether or not that order is ultimately made, I do not determine today, but there does need to be some alternatives to the current supervision order.

10. What the father was required to do by paragraphs 7 and 8 of those July orders was to undertake a comprehensive treatment program, including ongoing psychotherapy for the purposes of addressing his level of anger at the mother and his impulsive behaviour and how it (allegedly) affects his parenting and interaction with the children.  Specifically, it was ordered in conjunction with that requirement that the father be referred to a psychiatrist to review the level of his current medication and to undertake ongoing treatment.

11. From what I am told from the bar table, those requirements in paragraphs 7 and 8 of that order have not been complied with.  The father has previously seen a consultant psychiatrist, Mr G.  It is proposed that he not see that specialist in relation to the ongoing treatment as was contemplated in the extant orders.  Otherwise, the father is also seeing Dr P to address certain psychological issues and trauma and behavioural matters.

12. I make no comment upon those matters, though from what I have seen in the father's own questionnaire and otherwise from what is being said from the bar table, there clearly are very complex issues that touch upon his past alcohol consumption, lifestyle, issues of exposure and behaviour, and generally his understanding of what is in the best interests of these two boys.  Again, I make no finding. The evidence is somewhat incomplete and currently, as an overview, it would seem that the parties and the practitioners are somewhat apart in terms of the preparation of this matter for trial, what needs to be done and what can physically and financially be organised.

13. The extent to which the parties are apart is best highlighted by the application of the father for the children to live on a weekabout basis with he and the mother and alternatively, I understand the mother has concern as to three hours' supervised time per fortnight and in reality, probably seeks to justify an argument that that be further reduced or eliminated.  Again, I make no findings or further observations in that regard. 

14. The Independent Children's Lawyer must be more actively involved in this case in terms of the identification of issues, ongoing time spent by the children with the father and that benefit to the children thereof and the various medical procedures or arrangements for the father.  Having said that, it is not a criticism and I understand there are very real practical and logistic issues in this case.

15. The court, however, must have evidence in proper, updated, current form before it to make a determination.  The parties have by consent agreed to one order which I will make.  I will not order the actions in relation to the contact centre but these extempore reasons will be transcribed and I certainly expect this issue to be well prepared when it next comes before me for mention.

16. There are complaints about telephone contact but the order is crystal clear:  there is to be half an hour each Tuesday and Thursday and I expect that to be taken without any failure between now and the adjourned date.  I see absolutely no reason, as the children have access to a mobile phone, why they should ever miss one occasion on both Tuesdays and Thursdays. 

17. Long term, there will likely need to be a reality about this case.  Three hours a fortnight ongoing is probably more disruptive for the children than satisfactory for the children, particularly with a stranger present, and that supervising person will likely change from time to time.  The reality will be, and without prejudging the future, that the father will either have greater time and no supervision or alternatively, there may need to be a clean break and have no time.  However, that is for the future and will only be determined on the basis of what is best for the children.  I carefully make no finding or further comment or observation on the obvious alternatives, along with many other options that are available to the court. 

18. The timing and hearing of this matter is a major concern.  The matter is not ready to proceed today.  I am not prepared to order any other family consultant report.  The obligation is on the parties, coordinated by the Independent Children's Lawyer to have full and proper evidence before the court.  If that means that each of the parties will prepare one affidavit from themselves correctly and succinctly putting their position to the court prior to the next mention date, I will permit one only affidavit of relevant issues to be filed.  I do so in the context that there are numerous affidavits and a long history before the Federal Magistrates Court and this court before it was permitted to enter into the less adversarial process, though I must observe that is an order I would not have made in this case.

19. This hearing today has occurred only on the basis of submissions and with an understanding from all counsel that there is much work to be done.   I will list the matter for mention on 27 November 2007 before me at 10 am, but I will be in a defended list that week.  I have no other day before Christmas where I can mention that matter.  I specifically underline to all counsel, solicitors and the parties that it is a mention only.  It will not have a hearing date.  What will happen on that day is the court will be precisely informed of the further medical developments and other developments in respect of the children and I will then contemplate an updated or a fresh family consultant's report and a further listing of the case.

I certify that the preceding paragraphs are a true copy of the reasons for judgment herein of The Honourable Justice Young

Associate

Date: 23 October 2007