Mathius and Relli
[2008] FamCA 116
•16 January 2008
FAMILY COURT OF AUSTRALIA
| MATHIUS & RELLI | [2008] FamCA 116 |
| FAMILY LAW – CHILDREN – Orders made by consent. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Mathius |
| RESPONDENT: | Ms Relli |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Wayne Dunstan |
| FILE NUMBER: | MLF | 734 | of | 2005 |
| DATE DELIVERED: | 16 January 2008 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 15& 16 January 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms A. Glaister |
| SOLICITOR FOR THE APPLICANT: | Doolan Kemp Townsend |
| COUNSEL FOR THE RESPONDENT: | Mr R.N. Hoult |
| SOLICITOR FOR THE RESPONDENT: | Hallett West |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr N.M. Eidelson |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Bowlen Dunstan & Associates |
Orders
That until further order the mother not cause permit or suffer the child … born … March 2001 to come into contact with Mr J.
That there be orders in terms of the Minutes of Consent Orders signed by the parties and dated 16 January 2008 (“the Minute”).
That my comments this day be transcribed and when transcribed a copy be sent to each of the parties.
IT IS DIRECTED:
That the Minute be placed upon the Court file and marked “Exhibit A”.
That the solicitors for the Applicant Father do engross the Minute and provide a clean, duly certified copy of the same (“the Copy”) to the Registry of this Court electronically within 3 days.
That upon delivery of the Copy to the Court, the within orders be extracted and the Copy be attached thereto.
BY CONSENT IT IS ORDERED
All previous parenting Orders be discharged.
The child … born … March 2001 live with the Father.
(a)The Mother and the Father shall have equal shared parental responsibility for the child.
That upon the condition that the Mother does not bring the child into contact with Mr. J, then the child spend time with communicate with the Mother as follows:
(a)From 2.00 p.m. Saturday until 5.00 p.m. Sunday inclusive on each alternate weekend commencing 26 January 2008.
(b)By telephone between 7.00 p.m. and 7.30 p.m. each Wednesday with the Mother to telephone the child at the Father’s home or on his mobile telephone.
(c)As further or otherwise agreed between the Mother and the Father.
The Mother and the Father keep each other informed of their respective residential addresses and the Mother keep the Father informed of any address at which she proposes to spend overnight time with the child.
The Mother shall text by SMS message the Father forty eight (48) hours prior to each period of time provided in paragraph 3(a) herein to confirm her attendance.
For the purpose of the Mother spending time with the child changeover shall occur at the L Railway Station at the commencement and the R Railway Station at the conclusion of her time.
In the event that the Mother does not attend for time with the child for three (3) visits over a six (6) week period then her time with the child shall be from 10.00 a.m. to 5.00 p.m. each alternate Saturday for the next three (3) visits.
The Mother shall ensure hat any overnight periods she spends with the child are at premises which provide suitable accommodation for the child and the Mother shall ensure that the child is not brought into contact with persons she knows to be affected by drugs or alcohol or persons she knows to be illicit drug users.
In the event the Mother does not have suitable accommodation for overnight periods with the child then she shall spend time with the child from 10.00 a.m. to 5.00 p.m. each alternate Saturday until she advises the Father that she again has suitable premises for overnight time with the child.
The Father shall ensure that the child attends CAHMS programme as directed by the child’s treating medical practitioner.
The Mother shall participate in and attend the CAHMS programme as directed by the child’s treating medical practitioner.
The Father and the Mother shall keep each other informed of any significant injury or medical treatment for the child including any counselling attended by the child.
That the Mother and Father shall each be entitled to attend the child’s school and be involved in the child’s school community.
The Mother and the Father shall be restrained from using or being affected by illicit drugs when the child is in their respective care.
That all Applications be otherwise dismissed.
Certify for Counsel.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975, 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 Annexure A attached hereto and these particulars are included in these orders.
The Independent Child’s Lawyer be discharged as from 14 April 2008.
That until further Order the Mother must not cause, permit or allow the child to be brought into contact with Mr J.
Pursuant to s 65L of the Family Law Act 1975 a Consultant appointed by the Director of the Court’s Counselling Service be requested to supervise and offer such assistance as is reasonably requested by the parties in relation to the operation of these child orders for a period of twelve (12) months. Such assistance be reportable in the event that a report is requested by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Mathius & Relli is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 734 of 2005
| MR MATHIUS |
Applicant
And
| MS RELLI |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
COMMENTS
In these proceedings which concern a child born in March 2001, I am asked to make orders by all of the parties.
This matter was originally listed for final hearing yesterday, and there were extensive negotiations between the parties yesterday.
As part of the court’s preparation for trial, a report was prepared by
Ms W, family consultant. I have read the report and find it to be well reasoned and insightful. Ms W is a very experienced and respected family consultant. That said, the report has not been tested in cross examination.
The report contains the following comments:-
[44] [The child’s] school has very serious concerns about him at present. He was perceived, on commencement of school this year as a relatively bright child who was having considerable difficulties. Despite his problems, [the child’s] attendance has been good and he had been making encouraging progress until his mother made contact with him at school some weeks ago, after a long gap. Since this time, directly correlated to times when he has visits with his mother, [the child’s] already difficult behaviour has become almost intolerable because of its uncontrollable and violent nature, including kicking doors, punching walls and hitting out at other children. The use of medication appears to make little if any difference. The school is making use of a classroom assistant assigned to other children, however even with this help he is almost impossible to deal with.
[45] [The child] is on a waiting list for assessment and treatment at [CAMS]. [The child’s] paediatrician advises that [the child] was out of control in his surgery and that there is little that can be done for him whilst he is embroiled in the current litigation. He does not plan to trial further medication until the matter is finalised and is writing to CAMS to support urgent acceptance of [the child] for assessment. CAMS as a rule will not take children on until litigation is finalised.
[46] [The child] seemed clear about the purpose of his being interviewed by the Family Consultant: “because dad said that I am not allowed to see my mum ever again, because whenever I leave her house. I cry because I miss her.” When the Family Consultant noted that he had not seen his mother much lately, [the child] commented that “dad kept me away from her.”
[…]
[57] Given the dire nature of [the child’s] functioning at the moment, there may well be need for extremely urgent decision making to occur to provide the optimum circumstances for this little boy to come out of the trough he is in. clearly he needs urgent psychological assistance, which is hopefully at hand, along with the paediatric care he is already having. Beyond this, he needs clarity as to who is caring for him and what each parent’s role is in his life.
[58] The option of placing [the child] in the care of his mother, where the emotional, sexual and physical risks have not been eliminated, along with the fact that she has no home or support network at this moment, appears unrealistic. Even if [the mother] were to secure accommodation tomorrow, there is no certainty that this will be stable.
[59] Whilst [the father’s] attitude to [the mother] is most concerning, in that he finds it impossible to recognise the positives in [the child’s] mother, it may be that he is correct in saying that seeing his mother is the most disruptive thing for [the child] at the moment. For this reason, there may be merit in there being Orders that provide that [the child] live with his father and that the time spent with [the mother] for a set period, be limited to supervised contact on a fortnightly basis at a contact centre. This way there can be certainty for [the child] about where he lives, how often he sees his mother and his own safety, monitoring of what is said to him and no risk of exposure to Mr [J].
[60] The possibility of shared parenting responsibility or equal shared time for this family is beyond the realms of contemplation, given the issues in dispute and their chances of resolution.
Ms W was available to speak to the practitioners yesterday morning, and again late yesterday afternoon about this agreement that the mother and the father have reached between them. I note that the mother and father have each signed the minute which sets out their agreement.
It has been agreed that the child will spend unsupervised time with the mother on an overnight basis but there will be no contact between the child and Mr J, who is the mother's partner. The minute which has been drawn by the parties does not contain a general restraint in relation to the child coming into contact with Mr J. With the agreement of all parties that I will make a stand-alone order to that effect.
The resolution of the matter is somewhat different to that which was recommended by the family consultant.
I am comforted in this matter by the involvement up to today of the independent children's lawyer, who has attended to the matter diligently since his appointment including last year in assisting the court and the parties considerably in getting the matter ready for trial, overseeing very routine matters, such as the communication of addresses, details of medical practitioners, whether or not forms have been sent in. The independent children’s lawyer did many other things as well, but the fact that he had to do those routine things, I think, must reflect in some way on the capacity of each of the parents.
I wish the parents and the child well in the future and I hope that this is a resolution which is favourable to all of them. The evidence does leave me with concerns about the capacity of both parents. I would not be surprised if this matter finds its way back into the court system again. That said, I hope the orders to which the parties have agreed are the beginning of the best way forward for the child.
Finally, I note that Mr J was present in court when I made these comments, and counsel addressed me on the content of the orders, all of which I have made by consent of the parties.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 30 January 2008
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Consent
-
Remedies
-
Procedural Fairness
0
0
1