Mason and Wilson (No. 2)

[2007] FamCA 1429

FAMILY COURT OF AUSTRALIA

MASON & WILSON (NO. 2) [2007] FamCA 1429

FAMILY LAW – CHILDREN – With whom a child spends time – Supervision

Family Law Act 1975 (Cth)

APPLICANT: Ms Mason

RESPONDENT: Mr Wilson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6729 of 2007

DATE DELIVERED: 27 November 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 27 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Howe

SOLICITOR FOR THE APPLICANT: JKB Lawyers

COUNSEL FOR THE RESPONDENT: Ms Sampson

SOLICITOR FOR THE RESPONDENT: Patricia Sampson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Teicher

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

ORDERS

1. THAT the further hearing of all extant applications be adjourned for case management and as a mention before Young J on Thursday 20 December 2007 at 10.00 a.m.

2. THAT until further order paragraph 2(a) of the orders of Senior Registrar FitzGibbon made 31 July 2007 be varied so that the period of time the father spends with and communicates with both children be now supervised by Mr C and be for a period of between three (3) hours and five (5) hours, subject to the availability of Mr C.

3. THAT pursuant to s11F of the Family Law Act1975 (Cth) both parties are to forthwith attend an appointment, or a series of appointments, with a Family Consultant appointed by the Director of Court Counselling and that an interim report be prepared for the adjourned hearing dealing with, or providing recommendations as to:

   (a)         supervision, and if it is required;

   (b)         the interim periods which the father should spend with the children;

   (c)         arrangements for Christmas and New Year holiday periods;

   (d)ongoing interim orders pending a further and more meaningful hearing date in the first half of 2008;

   (e)with whom the children should live;

   (f)what should be the time spent with and communication orders on a long term basis.

4. THAT on or before 18 December 2007 the solicitors for both parties and the Independent Children’s Lawyer make, file and serve with the Court an updated statement of the particular orders, both interim and long term, as are now sought by the parties, or otherwise as recommended.

5. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

6. THAT the solicitor for the husband provide to the Family Consultant the extant intervention order made, by agreement, at the R Magistrates Court earlier this year.

IT IS NOTED:

A.THAT any time spent arrangement on a Saturday not commence before 10.00 a.m.

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 WLISON  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Mason & Wilson and the Independent Children's Lawyer is before me for mention pursuant to orders that I made on 12 October 2007.  I specifically listed this matter as a mention and not as a second hearing so that I could be updated on compliance with the order I made that day for the father to attend upon a general practitioner and to obtain a referral to a treating psychiatrist. 

2. This morning I was provided with a copy of an affidavit filed 26 November 2007 by the father and with various exhibits thereto. The affidavit first identifies that the treating general practitioner referred the father to Dr K, psychiatrist, and his summary of action is very briefly contained in exhibit "CW4" to that affidavit.  I observe that the father continues medication, taking Zoloft, 100 milligrams daily.  He is said to be compliant with that medication.  Otherwise I have perused that affidavit which raises a number of issues, including an allegation of a burn sustained by the child N to his face in mid September.  I make no findings on any particular issues.

3. I have had brief submissions from Ms Samson, solicitor, appearing for the father, Mr Howe of counsel, appearing for the mother, and Ms Teicher of counsel appearing for the independent children's lawyer. 

4. By the terms of the previous order which I made and the brief reasons for judgment accompanying that order it was clear that the matter was not listed for any interim ongoing defended hearing at this stage.  The matter of urgency that presently occupies the concern of the father and his solicitor is what is best to occur by way of interim orders prior to and immediately after Christmas.  In that context I have reread the family report of 10 May 2007 prepared by Ms Y and subsequently her updated affidavit filed 20 July 2007 with a one page report dated 13 July 2007 annexed thereto.  That addendum to her report was prepared as a result of reading the reports of Ms F.  Subsequently the matter was heard by Senior Registrar FitzGibbon, and I have read his orders and his reasons for judgment which are on file.

5. The other recently filed document is the affidavit of the mother filed by leave this day and the various letters annexed thereto.

6. The current circumstance is that both parties have filed an application with Gordon Care to supervise the father's visits.  That service is not yet available.  In the meantime the father has proposed, and the mother now agrees to, supervision by a Mr C.  On an interim basis, and perhaps short-term, Mr C has offered his services without fee, though it is understood it is a very significant commitment by him and I do not intend to impose this obligation upon Mr C other than in the short term.

7. It would seem the current arrangement is three hours each Saturday pursuant to the existing order, and that is between 10 am and 1 pm.  I will pronounce orders to facilitate the extension to five hours on a Saturday at the choice of the father and Mr C, but the basic requirement is not less than three hours.  The extra two hours are optional at the discretion and availability of Mr C.  Whatever occurs the mother must be specifically notified in advance of the appropriate times and I do not want her wholly inconvenienced if it be three hours or five hours.  That arrangement I will leave to be made between parties and their solicitors and if between parties, in a civilised manner.

8. The real concern in this case is to engage both mother and father in some form of children's responsive program. I propose to make an order pursuant to section 11F of the Family Law Act 1975 (Cth) and require the parties to attend upon a family consultant and with both children as directed. I require the parties to immediately attend at the fifth floor of this building to organise a first appointment date. I want a report on at least interim issues prepared over the next three weeks or thereabouts so that when this matter is listed for mention at 10 am on Thursday, 20 December 2007 I will have some available options. I highlight that on my current listing I will be hearing a residence and relocation case that has been listed as a matter of urgency for four days and this current case, Mason & Wilson, will only be listed on any urgent or genuine interim issues. Time simply does not permit otherwise.

9. I am required when making an order pursuant to section 11F to advise the parties about the consequence of failure to comply, and they are set out in subparagraph G of that section. The court will be informed of the behaviour, demeanour or actions of the parties before the consultant or otherwise as the consultant properly recommends. I leave the practitioners to further inform the clients of those sections of the Act.

10. What would be most helpful, and what I will require, is that the practitioners on the return date prepare a bullet point summary of the orders sought on an interim and ongoing basis, but concentrating on the immediate future; that is, in the week leading up to Christmas and in the several months thereafter, and particularly having regard to issues of supervision, or the need for supervision, and who the supervisor might be, and otherwise what further reports of any medical witness which should be obtained and be before the court.

11. As I understand the dynamics of the parties in this case and the angst between each of them and the uncertainties involved in the case it is seemingly apparent that Ms Morgan, as the appointed Independent Children's Lawyer, must immediately become very actively involved in the management of the case and in making meaningful directions to best help these two young children, who are now six years and four years of age.  I say no more because behind the scenes there may have been much active involvement but this case has the potential to fall out of control from a management point of view and of course then the children will be ones who suffer.

12. I again highlight this matter as being before the court for mention and it has occupied more time than I intended.  I will now make some brief extempore orders, including having these reasons transcribed and placed upon the court file. 

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

Associate

Date: 27 November 2007