McMaster and Cullis (No. 2)

[2007] FamCA 1022

FAMILY COURT OF AUSTRALIA

MCMASTER & CULLISS (NO. 2) [2007] FamCA 1022

FAMILY LAW – CHILDREN – Interim time spent with young child

Family Law Act 1975 (Cth)

APPLICANT: MR MCMASTER

RESPONDENT: MS CULLISS

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 985 of 2006

DATE DELIVERED: 31 AUGUST 2007

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 31 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS JENKINS

SOLICITOR FOR THE APPLICANT: PEARSONS SCHETZER & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR ZEMLJAK

SOLICITOR FOR THE RESPONDENT: COADYS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS AGRESTA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: VICTORIA LEGAL AID

ORDERS

1. THAT the further hearing of all extant applications be listed for mention at 10.00 a.m. on Tuesday 23 October 2007 before Young J.

2. THAT the parties do all acts and things, sign all documents and punctually attend at a round table dispute management session organised by or through Victoria Legal Aid and use their best endeavours to resolve all outstanding issues with respect to their daughter, … born … November 2005 (“the child”).

3. THAT the parties forthwith establish a communication book to be exchanged at all periods of time spent with information of and concerning the child as may be relevant to that period of time spent or as to her health.

4. THAT paragraph 7 of the Orders pronounced 13 September 2006 specifically does not intend either party being entitled to call, as part of their case and in evidence, any additional professional witness.

5. THAT the parties each do all acts and things and sign all documents to authorise and permit an Australian Passport to issue in the name of the child and for this purpose the mother obtain and prepare the application and the father be given an opportunity on Friday 31 August 2007 to sign that application.

6. THAT in default of the father signing such Passport application for his daughter then pursuant to s.106A of the Family Law Act 1975 a Registrar of the Court be empowered to sign that application in the name of the father and to do all acts and things necessary to give validity and operation to that Passport application.

7. THAT the child’s Passport, when issued be then held by the father’s solicitors, Pearsons Schetzer & Associates (for so long as they continue to act for the father), and until further order of the Court or written agreement of the parties, for the release of same.

8. THAT for Father’s Day, Sunday 2 September 2007 the child spend an additional period of four (4) hours with her father, at  B or such other venue as may properly be determined by agreement between the parties or otherwise by the mother.

9. THAT leave be granted to the Independent Children’s Lawyer to issue a Subpoena seeking production to the Court of the police file or brief or other prosecution documents of and related to the incident between the parties and where the matter was heard in the Ringwood Magistrates Court in or about December 2006.

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

11. THAT pursuant to sections 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 are set out in Annexure “A” and these particulars are included in these orders.

12. THAT for the purposes of psychological counselling, and altogether out of court the father be permitted to provide a copy of the Family Report of Ms B dated 25 July 2007 to Mr G.

13. THAT for the purposes of the round table mediation dispute it is requested that the Independent Children’s Lawyer, Ms Lonegan, or her nominee attend to assist the parties and more particularly to represent the interests of the child.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as McMaster & Culliss

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 985 of 2006

MR MCMASTER

Applicant

And

MS CULLISS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In this matter, I have a mention before me that has taken an extended period.  Ms Jenkins appears for the applicant father, Mr Zemljak appears for the respondent mother and Ms Agresta now acts for the recently appointed independent children's lawyer.

2. The matter has been before me on several occasions, the most recent of which was 26 July 2007 when the appointment was made for the independent children's lawyer.  On that day, I delivered brief reasons and also sought a summary of orders and a position that each of the mother and father to be established for this day.

3. This morning I was handed a proposal on behalf of the mother and the father and I will have those documents retained on the file as exhibit “F1” and exhibit “M1” respectively. 

4. It should be no surprise in this case that those proposals adopt a polarised position of the parents and really promote an idealistic outcome in accordance with the wishes and desires of the adults.  Unfortunately they do little to address the needs of the child now or in a development sense and it is fundamental for any observations in this case to understand that the child is not yet two years of age.

5. I have received submissions from all practitioners highlighted by the distance that they are apart from each other in a discussion or outcome sense.  At the outset this morning I indicated that I have no available final hearing date and in any event, this matter in terms of evidence and affidavit material is a long way short of now being ready to proceed to hearing.

6. I did contemplate setting up a regime for filing affidavits but I am persuaded that is not the appropriate step and that I firstly should require these parties to undergo round-table dispute management in an endeavour to resolve at least some of the issues.  That process will be organised by Victoria Legal Aid and can be commenced within four weeks.

7. Unfortunately the realistic outcome is that the parties will be unlikely to put all issues on the table, let alone discuss all issues, but the court must live in hope that the welfare of their daughter rather than any determined or personal outcome will be at least considered by both parents.

8. A number of issues have otherwise been discussed today.  The father is wholly dissatisfied with the current time spent which, in summary, is two periods each week with three hours under the substantial supervision or attendance of the mother.  A proposal was brokered by Ms Agresta that the Wednesday be varied to the Monday and that the three hours then be supervised or at least be observed by an independent person, Ms H, who has experience in these matters.  That would be at a cost of $60 to be shared by the parties.  That does remain an option but I will not make that order at this time but would ask the Independent Children's Lawyer to have in place that option to be later considered by the court.

9. An examination of the parenting orders, both on an interim and final basis submitted by the parties, highlights how far they are apart and how they seek to achieve orders to suit themselves.  The mother looks to maintain the current period with modest development hereafter, but on the basis that she has sole parental responsibility.  The father, who wants a shared equal parental responsibility, would have the situation increased to three occasions per week for up to eight hours and otherwise ideally seeks in the short term final orders with the child spending a weekabout arrangement with each party.

10. I will not prejudge either outcome but it is absolutely clear that reality does not adorn those applications and hopefully some further professional assistance or management resolution from the Independent Children's Lawyer will bring some more reality to this case.

11. There are a number of specific issues.  The father is having some level of psychologist counselling that he has organised with a Mr G.  On 13 September 2006 I did order the parties to enrol in Relationships Australia for ongoing parental counselling and it does seem that the ongoing sessions with Mr G arise from that order.  At no time did I intend any psychologist seeing only one of the parties to become an expert witness in the hearing of this case and I make it perfectly clear by these orders that I am not inviting nor am I likely to permit any additional independent professional evidence to the advantage of one party only.  That counselling there ordered was intended to be non-reportable and independent.

12. Father's Day is this coming weekend.  The father will see his daughter.  There is a dispute as to whether it is three and a half hours or six hours or any other period.  With no particular rationale in mind but simply to have a period that does not identically accord with either party, I will order four hours.  It will have to occur at a public venue.  It can be B, or otherwise as agreed, though to expect any agreement between this couple is but an outside possibility.  It may however be that it does rain, although in Melbourne it is unlikely, but nevertheless there must be some level of comfort for the child and there must be some other realistic option available.  If the parties cannot agree and the weather is inclement, then the mother should determine the venue.

13. I would hope that within that four-hour period, there could be, perhaps for the central two-hour period, where the father has limited observation or attendance directly by the mother and generally again, parties would talk through that issue, but failing agreement, I do not propose to interfere with the previously ordered overview and circumstance of the mother.

14. The child does not have an Australian passport.  I propose to order that the parties sign, or in default of the father signing, a Registrar of this court forthwith sign a passport application so that such a passport could issue.  It is then to be held by the solicitors for the father for so long as they continue to act for the father in safe custody, not to be released to either party without further court order or written agreement of the parties and their practitioners.  The mother will pay the costs of that passport application.

15. There is a foreshadowed application that the mother and child have a holiday of up to a month out of Australia, be it in America or Canada.  I understand it is not for the purposes of a skiing holiday, but having said that, I have indicated to the mother's solicitor that I will not entertain any oral application and will not at this stage permit such travel.  The minimum requirement would be a dedicated affidavit setting out the purposes and extent of travel and all itinerary issues and other matters that may arise from that trip.  It is a matter that can be done on considered material.  That is not to say that at some future date, such an order will not be made; it is just a matter that does need more considered thought and attention by the mother and thereafter by the court.

16. The approach that I take on this extended mention will be to list the matter for what will be a brief mention on 23 October 2007 at 10 am.  I take that date as it is a day where I am in a defended list and this matter can have a few moments to allocate then a defended hearing date in the new year and to consider appropriate orders which all practitioners will have to prepare in advance of that mention date as to a timetable for affidavits and by way of identification of witnesses and issues.  I forcibly underline that there will not be any extended mention of the matter on that day.

17. I do appreciate that both parents are saying that a defended hearing is almost certainly required as there is no level of discussion or communication and certainly no level of trust between them.  The evidence is not in proper form.  Indeed what witnesses may be called are yet unknown.  Certainly Ms B has prepared a family report and Dr J has undertaken an assessment of the father; that may or may not need to be updated in the light of Ms B’s report or other evidence, including documents relating to a police prosecution that are the subject of contest as to their existence or availability at this time.  I do propose to require the Independent Children's Lawyer to issue a subpoena to at least have the documents available for the court or any professional witness who may have an interest in or benefit from reading those documents in the context of the inquiry of this court and the best interests of the child.

18. I specifically am otherwise, prior to the further mention or any discussion by the parties, not going to interfere with the current structure of the time spent with orders.  The priority of these parties in the interests of their daughter and to save their own level of conflict and from the mother's position, as she pays her legal fees, an increasing quantum of costs, should be to resolve these issues in some dispute resolution circumstance that will now be established.  That is my priority in these orders and leaving to one side so many of the other issues in conflict between the parties.

19. Insofar as a communication book was sought, I see no downside, indeed only benefit, but it may be a matter of interest one day in evidence to see what level of information and detail is equally contributed by the parties to that book.  Above all else, it should not lead to any further issue or conflict. 

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

………………………………………………………..
Associate:                   
Date: 5 September 2007