Maubert and Botzaris

[2009] FamCA 230

FAMILY COURT OF AUSTRALIA

MAUBERT & BOTZARIS [2009] FamCA 230

FAMILY LAW  -  CHILDREN  -  fresh applications filed soon after final orders made  -  contravention applications  -  directions  -  adjourned for hearing of contravention applications and interim applications  -  request that former independent children’s lawyer be reappointed

Family Law Act 1975 (Cth)

FATHER: Mr Maubert

MOTHER:	Ms Botzaris
FILE NUMBER:	MLC	16687	of		2009

DATE DELIVERED: 16 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 16 March 2009

REPRESENTATION

COUNSEL FOR THE MOTHER: Mr D.W. Laidlaw

SOLICITOR FOR THE MOTHER: Rigoli Lawyers

THE FATHER: In person

Orders

1. That pursuant to s.68L(2) of the Family Law Act 1975 the interests of the child S born … September, 2001 be independently represented by a lawyer AND IT IS REQUESTED  that Victoria Legal Aid arrange such independent representation  AND IT IS FURTHER REQUESTED  that consideration is given to appointing Mr. Robin Harrison of Robin Harrison & Associates who was formerly the independent children’s lawyer in this matter.

2. That forthwith upon appointment by Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

3. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

4. That the following applications be adjourned to 10:00 am. on 21 April, 2009 :

   (a)initiating application filed by the mother on 27 February, 2009;

   (b)application in a case filed by the mother on 27 February, 2009;

   (c)application for the father to be dealt with for contravening parenting orders filed by the mother on 27 February, 2009;

   (d)response to an application in a case which the father was given leave to file this day;

   (e)application filed by the father seeking that the mother be dealt with for contravening parenting orders for which leave to file was granted this day;  and

   (f)any response to the initiating application filed by the father. 

5. That each of the parties file and serve any additional affidavit on which he or she intends to rely no later than seven days prior to the adjourned date. 

6. That all costs of this day be reserved. 

7. That pursuant to s.62B and s.65DA(2), 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 the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

8. That the preparation of these orders be expedited forthwith.

9. That the reasons for judgment this day be transcribed and copies made available to the parties.

10. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

That the father was granted leave to file the following documents :

(a)   response to an application in a case;

(b)  contravention application;

(c)  affidavit sworn by him;

(d)  affidavit sworn by Ms C, the father’s fiancé.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 16687 of 2009

MR MAUBERT

Father

And

MS BOTZARIS

Mother

REASONS FOR JUDGMENT

1. The parties have a son who was born in September 2001.  Proceedings commenced in about 2006 and final orders were made, by consent, on 30 June 2008, pursuant to which the child spends time with each of them.  Pursuant to those orders, they have equal shared parental responsibility for the child.  On 27 February, eight months after those final orders were made, the mother filed three applications in this court. 

2. The first is an initiating application in which she seeks a number of changes to the final parenting orders.  The second is an application in a case, in which she seeks interim changes.  In particular, she seeks that the child live with her, that she have sole parental responsibility for him and that the father spend time and communicate with the child as determined by the court. 

3. On the same day, she filed an application seeking that the father be dealt with for contravention of the orders of 30 June, 2008.  There are a number of contraventions.  Some relate to an alleged failure, without reasonable excuse, to make the child available for telephone contact.  Some complain about a failure to communicate and consult about aspects of shared parental responsibility.  Some relate to a failure to return items of clothing.  At least one relates to a failure, without reasonable excuse, to return the child. 

4. In support of those applications, the mother filed a very lengthy affidavit.  Some considerable part of it are annexures.  It was sworn on 18 February and filed on 27 February.  A shorter affidavit was sworn by her on 26 February and filed on 27 February, together with an affidavit of Mr D, her finance. 

5. Those three applications were listed to today.  The mother appears, represented by counsel, and the father appears for himself.  The father sought leave to file a response to the mother’s application in the case, and a contravention application which he seeks to bring against her.  I have granted leave to file those documents later today. 

6. The husband has also sought leave to rely on an affidavit resworn by him today, and an affidavit from his fiancée, Ms C, and I have given him leave to do that. 

7. There has been some discussion about subpoenas which the father sought to issue.  At this stage, I am not satisfied they are required.  I have allowed the father to tender into evidence (and refer to it in any subsequent proceedings) a letter from the school principal that suggests a degree of consultation relevant to one particular contravention, and which appears not be consistent with the case the mother may be seeking to make.  That will be a matter for the judicial officer before whom the cases are listed in due course.  The letter is marked exhibit F1.

8. In the previous proceedings, Mr Harrison of Robin Harrison and Associates was the independent children's lawyer.  Each of the parties has submitted that this is an appropriate matter for an independent children's lawyer and given the swift breakdown in the final orders, I am satisfied that that is so.  Insofar as possible, the child needs to be protected from continuing litigation.  Litigation is very stressful for children, and not only because they get sent off to be seen by psychologists, social workers and lawyers.  They live with parents, and friends or fiancés of parents, who are themselves stressed by the litigation, which has the capacity to impact on the whole family.  Litigation also has financial ramifications for families.

9. I have made some comments, which I will not repeat, about the lack of efficacy of contravention applications, if parents are generally focusing on the best interests of children.  They are blunt instruments to achieve change.  I hope both parties consider progressing the applications for parenting orders to determination, if they cannot agree on future arrangements.  Spending a lot of time and energy on quasi-criminal proceedings may, in the long run, bring neither joy. 

10. I propose to adjourn all extant applications, including applications to be filed pursuant to leave granted this day, to what used to be referred to as the long interim list, on 21 April.  I will ask VLA to reappoint Mr Harrison as independent children’s lawyer and order that each of the parties file and serve any additional affidavits on which they intend to rely no later than seven days prior to the adjourned date.

11. That is not an invitation to the parties to get 500 people to swear affidavits. It is not the Weights and Measures Act which is relevant.

12. If the contravention applications proceed on the adjourned date, evidence would be given and parties cross‑examined.  Oral evidence is not routinely given when the court determines interim applications.  The parties should bear in mind that the next date is not the date on which their applications for final orders will be considered.   

13. When the ICL comes back into the matter he will no doubt contact each of the parties, who should not rule out the usefulness of some form of round table mediation, at least as a starting point.  Sometimes mediation can succeed, despite a long history of litigation and unhappiness.  What is important is that the parties focus on the child, rather than on their own frustration and parental conflict. 

I certify that the preceding
13  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.