McLory & McLory

[2009] FamCA 789

FAMILY COURT OF AUSTRALIA

MCLORY & MCLORY [2009] FamCA 789

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT: Ms McLory

RESPONDENT: Mr McLory

INDEPENDENT CHILDREN’S LAWYER: Mr Emerson

FILE NUMBER: BRC 8082 of 2008

DATE DELIVERED: 27 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R. Slade-Jones

SOLICITOR FOR THE APPLICANT: Andrew Burrows & Associates

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Emerson Family Law

Orders

1. The matter be adjourned for further mention at 9.30am on Thursday 10 December 2009 before the Honourable Justice Murphy in the Brisbane Registry of the Family Court of Australia.

2. All other applications that are outstanding having been transferred from the Federal Magistrate’s Court Brisbane are adjourned for mention at 9.30am on Thursday 10 December 2009 before the Honourable Justice Murphy.

3. Within 7 days of the making of this order the mother shall file and serve an Amended Application to be relied upon by her.

4. Within 21 days of the mother filing and serving an Amended Application, the father shall file and serve an Amended Response in relation to same.

5. The father is given leave to include in the Response to be filed by him pursuant to order 1 of these orders any application for settlement of property pursuant to s79 of the Act. 

6. The father’s application filed 4 February 2009 is dismissed. 

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Paragraphs 5, 6 and 12 of orders made by Federal Magistrate Coates on 9 September 2008 are discharged.

2. In lieu thereof, THE CHILD born … February 2008 shall spend time with the father:

   a.from 9.30am until 1.30pm on Tuesday, Thursday and Saturday of each alternate week, commencing Tuesday 28 July 2009;

   b.from 9.30am until 1.30pm on Tuesday and Saturday of each alternate week, commencing Tuesday 4 August 2009.

3. Changeovers at the commencement and conclusion of time shall occur at the H Police Station.

AND IT IS FURTHER ORDERED

1. Pursuant to Section 65L of the Family Law Act 1975 (Cth):

   a.compliance with parenting orders is to be supervised by a Family Consultant of the Family Court of Australia Brisbane;

   b.the Family Consultant shall give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with , and the carrying out of, the parenting orders;

   c.the parties shall do all such things, sign all such documents, attend all such appointments and ensure the child attend all such appointments as are reasonably necessary for such supervision;

   d.the Family Consultant prepare a report, in respect of the supervision, pursuant to s65L, such that the report is available at the hearing listed for 10 December 2009.

2. Pursuant to s62G of the Family Law Act 1975 (Cth) a Family Report be prepared thereafter by the same family consultant conducting the supervision pursuant to s65L.

3. The parties shall do all such things, sign all documents and pay all such reasonable fees that might be required so as to participate in interviews for the preparation of a report by a consultant psychiatrist nominated by the Independent Children’s Lawyer and it is requested that the Independent Children’s Lawyers facilitate the preparation of that report with the intent that report be available for use by the court at proceedings on 10 December 2009.

4. The parties do all such things, sign all documents and authorities and pay all such reasonable fees as might be required so to submit to random urine or other testing designed to detect the presence of legal or illegal drugs in the system of either of them as requested from time to time by the Independent Children’s Lawyer.  

5. Pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

NOTATION:

(a)Any time facilitated between the father and the child for the purposes of s65L order hereby made will be in addition to any time otherwise provided for in these orders.

(b)Pursuant to allegations made by the mother and Domestic Violence orders currently in place the mother be at liberty to use the address and telephone number of her solicitors as her usual contact number but that the mother provide a telephone number to be used solely for the purposes of emergency should same be required.  

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8082 of 2008

MS McLORY

Applicant

And

MR McLORY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. When this matter came before me on the “first day”, as that expression is used in Chapter 16 of the Rules, pursuant to the court’s less adversarial trial process, an issue was raised about the time that the parents should spend with their young child, a daughter, who is but 17 months old. 

2. Orders were made by Federal Magistrate Coates on 9 September 2008.  At that time the parties each appeared on their own behalf.

3. The mother’s application at that time, insofar as it related to interim orders, was prepared by her. It sought an order that the child live with her and that time be spent with the father as ordered by the court. 

4. Federal Magistrate Coates made an order in respect of the child - who was then barely six months old and being breastfed - as follows. 

   That the child spend time with, and communicate with, the father as follows: 

   (a)Every Tuesday, Thursday and Saturday from 9.00am through to 6.30pm.  

   (b)Every alternate Sunday commencing on the Sunday following the date of this order.

5. It might be observed that no timeframe is provided for, for the Sunday time.  The father told me that he had proceeded on the basis that it was intended that it, too, should have 9.00am to 6.30pm as its timeframe.

6. The effect of that order would be that time would be spent with the child in each second week each Tuesday, Thursday, Saturday and Sunday. The father had proposed that the child spend the Saturday night when that occurred with him.

7. A number of events occurred subsequent to those orders involving assertions by the mother as to matters that caused her significant concern.  I am told that those matters were referred through a general practitioner to the SCAN team and the appropriate authorities. 

8. I am also told that the Department of Child Safety and the Police have now carried out an investigation and have found that any allegations made by the mother are “unsubstantiated”. 

9. As a result of the concerns just referred to, the mother asserted that time ought be spent only on a supervised basis and, as a result, the father has been exercising time with the child at the G Contact Centre for a period of two hours per week since about April this year.

10. When the matter came before me, then, there was an existing de-facto arrangement of some three months standing contrary to an order made in September last year by the Federal Magistrate to which I have just referred. 

11. No Application in a Case is filed by the mother with a view to varying the existing order and the father seeks to maintain it. 

12. I was told by the parties, and Ms T (who appears in the proceedings today as the family consultant who authored a Children and Parents Issues Assessment) that a proposal had been put forward by the mother with a view to the child spending time with the father for about six hours on Saturday and each alternate Sunday.

13. Discussion ensued about the merits of that and about what might occur with respect to the final hearing of this matter.  In the midst of that discussion, however, I ascertained that no application had been filed seeking orders to that, or any other, effect. 

14. Mr Slade-Jones, who appears as counsel for the mother, sought to make, at my instigation, as it were, an oral application to that effect. 

15. The father opposes the hearing of that application saying that he is prejudiced, particularly given his self-represented status.

16. Four things, in particular, convince me that I should hear the oral application. 

17. First, this child is a young child and the existing situation is a de-facto situation arising as a result of assertions made by the mother and that position, seems to me, to require some clarification.  In that respect, as the High Court of Australia has made clear, the court has an independent obligation to arrive at proposals with respect to the care of the child, the subject of proceedings before the court, independent of any proposals put forward by the parties.

18. As I indicated during the course of the argument, leaving aside any concerns about what might be best for the child in the circumstances arising since the orders were made, I, myself, have very considerable concerns - shared in this case by the family consultant, Ms T - as to the length of time a tiny child is spending away from her then breastfeeding mother and, in any event, given her young age.

19. Secondly, the court is charged, by reference to Division 12A of the Act, to dispense with as many formalities as possible so as to ensure that the true issues between the parties are heard and determined as expeditiously as possible and has various duties in respect thereof. I refer, in particular, to Section 69ZN and 69ZQ of the Act.

20. It seems to me that I should err on the side of trying to have this matter determined where a number of issues are raised with respect to the child’s interim arrangements. 

21. Thirdly, I have had the benefit of evidence from Ms T and Ms T also expresses some concerns with respect to the current order made by Federal Magistrate Coates with respect to the child. 

22. Fourthly, the position with respect to the court’s first day might be fairly regarded as somewhat unclear in circumstances where matters are transferred from the Federal Magistrates Court to this court.

23. Whilst Chapter 16 of the Rules spells out clearly enough the processes and requirements, the processes thereby described also recognise that the first step that will be undertaken in this court when a matter is transferred to this court is a reference to the court’s child responsive program and a resulting family’s and children’s issues assessment from a family consultant arising from those interviews. 

24. It is, in my view, understandable that practitioners may seek to await the outcome of that assessment prior to filing any application or, indeed, prior to rendering advice and obtaining instructions in the light of the matters raised in that assessment.

25. Mr Slade-Jones says that it is what occurred in this case and I find it understandable that that should be the case. 

26. Further, and importantly, although the father argues that there is some prejudice to him by that application being heard today, I am not persuaded that any such prejudice is such that in light of the matters just referred to, it outweighs a need for the court to hear submissions and evidence about, and make a decision about, the child’s interim parenting arrangements pending the final hearing of this matter.

27. I am fully cognisant of the fact that the father represents himself, but it seems to me that the issues relevant to any case he seeks to present (which, in any event, will be presented and listened to in a less adversarial environment) are fully canvassed by the material filed thus far and, in particular, by an earlier report of Mr P obtained in the Federal Magistrates Court proceedings and the Children and Parents Issues Assessment prepared by Ms T. 

28. For those reasons I give leave to the mother to permit an oral application by her varying the order made by Federal Magistrate Coates on 9 September 2008.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  31/08/2009