METTRICK & METTRICK

[2011] FamCA 1083

FAMILY COURT OF AUSTRALIA

METTRICK & METTRICK [2011] FamCA 1083

FAMILY LAW – Interim parenting application not to proceed in absence of expert evidence.

APPLICANT: Mr Mettrick

RESPONDENT: Ms Mettrick

INDEPENDENT CHILDREN’S LAWYER: Ms S Sheed

FILE NUMBER: MLC 12017 of 2007

DATE DELIVERED: 5 December 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.J. Mettrick in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Brookes

SOLICITOR FOR THE RESPONDENT: Nevin Lenne & Gross

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Durai

Orders

IT IS ORDERED THAT:

1.     The competing applications for parenting orders in relation to the children B born … 1999, C born … 2001 and D born … 2005 be adjourned to 10.00 am on 17 February 2012 estimated to take half a day to a day.

2. Pursuant to section 11F of the Family Law Act 1975 the parties to the proceedings attend an appointment/series of appointments with a family consultant of this Registry of the Court to be commenced as soon as practicable and for the report to be released by not later than 6 February 2012 and for that purpose:-

a)      The mother be responsible for bringing the children to the Registry on the same date and time of her own appointment;

b)     The sequence and organisation of interviews is a matter within the sole discretion of the Family Consultant;

c)      A place be reserved in the child-minding section of the Court for the children and it be maintained for them throughout the day;

d)     The Family Consultant may appoint further interviews for the parties and the children; and

e)      It is requested that the Family Consultant prepare a Children and Parents Issues Assessment in writing and that it be made available to the parties, their practitioners and the Court not later than 6 February 2012.

3.     The Family Consultant may, at the direction of the Honourable Justice Bennett, be required for cross-examination on the adjourned date.

4.     For the purpose of the Children and Parents Issues Assessment in this matter the family consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties.

5.     If the parent and children’s issues assessment is not available for release by 6 February 2012 the independent children’s lawyer consider whether the hearing on 17 February 2012 ought be adjourned to permit the parties an adequate opportunity to digest the report and organise his/her case and make enquiries of the parties and of my Chambers and if necessary, have the matter listed for directions.

6.     Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrars Riddiford or Sikiotis for the return of subpoena or on any date notified to the parties by my Chambers for the return of subpeoana(s).

7.     In lieu of the time to which the children are entitled with the father this Christmas time pursuant to paragraph 4(c)(i) of the Order made on 24 November 2009 the father have time with the children from 10.00 am to 3.00 pm on Tuesday 27 December 2011 and for the purpose of such time, and subject to paragraph 11, the mother deliver the children to the supervisor inside the Police Station at E Town and the supervisor return the children to the mother at the same place at the conclusion of the time spent.

8.     For the purpose of changeover provided for in the preceding order the father not be present nor within 100 metres of the said police station at or within 20 minutes before or after the changeover time.

9.     In anticipation of the hearing on 17 February 2012 each party file and serve any further material upon which he/she relies by not later than 10.00 am on 13 February 2012.

10.     By 12.00 noon on 15 February 2012 the independent children’s lawyer publish to each other party to the proceedings her preliminary view of what orders ought be made at the further hearing.

11.     Notwithstanding anything to the contrary in this Order, if the contact centre currently used by the family is open and able to conduct a changeover on 27 December 2011, the changeover occur at that contact centre in G Town in lieu of the E Town Police Station.

12.     The independent children’s lawyer be at liberty to provide any reports or copied documents or copied subpoenaed material to any professional who has provided statements or evidence in this case, including Dr F and the proper officer of the contact centre used by the family in G Town.

13.     The reasons for decision this day be transcribed and when settled copies be made available to the parties.

14.     Pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12017 of 2007

Mr Mettrick

Applicant

And

Ms Mettrick

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ex-tempore

1. This matter comes before me as a preliminary directions hearing, being an application initiated by the husband and filed on 14 October 2011, in which he seeks a detailed suite of orders in relation to the children B (12 years old), C (10 years old) and D (6 years old), leading to an equal shared parenting arrangement with shared parental responsibility. 

2. The orders currently in place are those made on 24 November 2009, which provide a very restrictive regime of time of some four hours each fortnight, supervised by either the husband’s partner or his mother, both of whom live remotely to E Town where the children reside.  The orders also countenanced the eldest child, B, not attending.  Those orders were sought by consent and those orders were made at the conclusion of a lengthy hearing before me in 2009, following extensive evidence.  For most of the operation of the orders since the last hearing, B did not attend time with his brothers and father, although I am informed from the bar table that on the last five spend-time occasions, B has attended.

3. The spend-time arrangements involve a contact centre in G Town, and that is where the children are delivered to and collected from.  Since the final orders, which were made by consent, were made, the father has acquired accommodation in E Town.  He initially rented accommodation in E Town from November 2010, and then purchased real property in July 2011.  It is about 2 kilometres from the wife’s residence, about 2 kilometres from the school, or, as the husband says, about 1.2 kilometres “as the crow flies.”  The husband now proposes to move his spend-time arrangements to E Town.  The difficulty that confronts him is that the nominated supervisors, being his partner and his mother, live in Melbourne, so for them there is a lot of travel.

4. Today, he seeks that there be a greater flexibility of supervisors, but has not nominated anyone.  He seeks to spend more time with all of the children, including overnight time, and more time by way of telephone communication.  He seeks to dispense with the changeovers occurring in G Town.  The fact that changeovers are conducted through a contact centre in G Town adds about 70 to 80 kilometres to each spend-time trip, as the children – and indeed himself and any supervisor upon whom he relies – has to travel from E Town to G Town by car at the beginning and at the end of the time.  For the supervisors, that represents a second trip because they have already travelled from Melbourne.

5. As I have explained to the parties, today is not a day in which I am in a position, based on the evidence which is before the Court, to make an adjudication or determination which is in accordance with the best interests of the children.  The case has been thoughtfully constructed, but the most recent social science input is that of Dr F in February 2011, and that itself arises out of interviews that were conducted the year prior.  She makes certain recommendations, which include some overnight time with all three children, on the basis that it is not supervised.  She does, however, see the appropriateness of changeovers being conducted through a contact centre.

6. I have ascertained that the matter can be accommodated in a children and parents issues assessment in January or, if not in January, then in February.  I would hope it is January rather than February.  That seems to me to be the best way of getting the matter on track.  This would come with some understandable frustration from the husband’s part, who has made his application, but I do note that the husband’s application was filed on 14 October 2011 and has found its way to a judicial officer very much more quickly than most cases in this Court would.

7. The independent children's lawyer, who was the independent children's lawyer for the trial, was re-appointed last week.  The mother and the independent children's lawyer oppose any alteration in the parenting arrangements at this stage.  They oppose dispensing with the contact centre, except for one occasion over Christmas, if it is necessary to do so.  They oppose an extension of time.  They oppose a dropping of the supervision at this stage. 

8. This, when the matter ran before me for 12 days in 2009, this was a matter of certain complexities, as the end result to which the parties were able to agree illustrates.  This is not a case in which I think that there should be tinkering with the arrangements that are in place, unless those alterations are soundly based and can with confidence be said to be at least consistent with, if not reflect, the best interests of these three little boys. 

9. I am impressed that on the last five occasions, the oldest child B has gone to see the father.  The mother says do not rock the boat and endanger that.  The independent children's lawyer says the same, but for a different reason.  I am advised by Ms Durai, who represents Ms Sheed, that Ms Sheed last week had a telephone conversation with the relevant officer of the contact centre, and was told that in the view of the contact centre it is desirable for this family that they continue to have changeovers on a supervised basis, provided by the centre.  Unfortunately, there is no report to that effect, and there are no records produced by the centre today.  I say that without a hint of criticism, because Ms Sheed was only appointed last week, but I do require that, some time in December, Ms Sheed cause a subpoena to issue to the contact centre, requiring production of copy notes and documents concerning the family. 

10. The reason that I specify that they should be copy documents is because production of the originals would deprive the officer of the contact centre being able to have access to those records for the purpose of preparing a report, which I understand from counsel for the independent children's lawyer will be a fairly detailed report which deals with the impressions by the contact centre of the family and the family members, and the history of the family’s involvement with the contact centre in 2010 and 2011.  It is necessary that the primary source documents, being the centre’s notes, be available by the end of this year, so that they can be looked at by the family consultant.  It is not necessary that the report issue this year, and that could await the particular worker’s return. 

11. In the circumstances, I am not prepared to alter the arrangements.  Quite simply, the Court does not have sufficient evidence before it, and to do so would belie the nature of today’s listing, which is really a matter of organising the case and making sure it is on the right track.  That said, the husband has made known certain things that he seeks, and the fact that they are not available to him are matters that could well be relevant on a final analysis.  He sought to dispense with the contact centre being involved in changeovers.  That is not agreed to and I will not be ordering it, but it remains a fact that that is what he wanted. 

12. He has requested in Court to be able to attend B’s valedictory ceremony on 21 December.  That is a school-based event and marks the end of B’s career as a primary school student, and is a matter where I am sure there would be some reminiscence and nostalgia.  The father also seeks to be involved in any parent-teacher interview or exit interview that may take place for B at the end of this year.  He frames both requests in terms of it being consistent with B’s best interest.  I note that, in open court, the mother has rejected the request or not agreed to the request, and says that she would not be comfortable.  I will not make any orders that would entitle the father to attend.  It is clear from the affidavit material, all of which I have read, that the operation of the Family Court orders, with orders under state domestic violence legislation, operate to significantly curtail the father’s freedom of movement around the children and around their schools.  That is a situation which will have to endure until I can look at the matter properly, with the assistance of a social scientist from this Court, and some input from the contact centre, which on a limited basis can be at least the subject of comment, if not testing by cross-examination.

13. The current orders provide for the father to have time with the children on Christmas Day.  The father says that the father does not have a supervisor available to him on Christmas Day, and seeks to spend time with the boys in lieu of Christmas Day on 27 December.  The wife is agreeable to that occurring in lieu of the time he would otherwise have had on Christmas Day.  The contact centre is thought not to open on 27 December.  In the event that it does open, then the spend-time will have to commence and conclude at the contact centre in G Town.  If it does not open, then the wife and the independent children's lawyer suggest the E Town Police Station.  The husband countenanced the police station to start with, but then prefers McDonalds Family Restaurant.  In all of the circumstances, I will make changeover at the police station.  It is not generally a preferred option of mine to expose the children to an idea of their family requiring to meet at a police station, but I do think that McDonalds has less security and scrutiny about it, and, as the husband, quite accurately points out, I think it will be fairly crowded on 27 December and those festive days.  There is no evidence as to the amount of video cameras in the E Town McDonalds Family Restaurant, although I take judicial notice that most areas of those establishments are surveilled.  I do not know that every area is surveilled.  I will make an order which provides for the compensatory time.

14. The father has, in compliance with the current orders, undergone a number of classes and courses.  The orders were silent as to the support that the mother was required to or ought receive.  I am advised, however, from the bar table that she sees Mr H of Hume Psychology once a month, and has had involvement with Mr H for some four years.  She has previously been in contact with the J Centre in E Town.  I have commented to counsel for the wife that, if the wife proposes to run part of her case on the basis that alteration of orders would have an adverse impact upon her parenting capacity, it is incumbent solely upon her to provide evidence in support of that contention.  It will not be a matter of assumption.

15. I will appoint a hearing date in February 2012.  It is essential that prior to the hearing date, the parties have an opportunity to read the children and parents issues assessment.  If they do not have an opportunity to have done that prior to the hearing date, then the independent children's lawyer ought contact my chambers and arrange for an administrative adjournment, for only so long as it is necessary for the parties and the lawyers to be familiar with the report.  I do not want the matter to return to Court without the parties having had an opportunity to digest the evidence with which they will have to deal. 

16. The husband also made application in relation to extending the hours of time for Christmas, from 10 am to 3 pm, to some six hours.  The wife opposes any alteration.  For the reasons that I have expressed in relation to tinkering with the orders in the absence of some comprehensive evidence, I will decline that application.  It is not in the best interests of the children that the Court alters orders which were on a sound basis in favour of proposals in respect of which relevant social science evidence is absent.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 December 2011.

Associate: 

Date:  17 February 2012