Mortenson and Parker

[2007] FamCA 162

FAMILY COURT OF AUSTRALIA

MORTENSON & PARKER & ANOR [2007] FamCA 162

FAMILY LAW - CHILDREN – Spend time with - Communicate with

Family Law Act (Cth) 1975

APPLICANT: Mrs Mortenson

RESPONDENT:

Ms Parker

Ms Mortenson

FILE NUMBER: SYF 4662 of 2003

DATE DELIVERED: 20 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 20 February 2007

REPRESENTATION

APPLICANT: The maternal grandmother in person

SOLICITOR FOR THE RESPONDENT:

Legal Aid Commission of NSW Manly.

The mother in person

Orders

1. The proceedings are adjourned to the Call-over of the Judicial Registrar's Duty List at 9:30 am on 20 March 2007.

1. Leave is granted to the Applicants or either of them to attend by video-link or telephone on the adjourned date should they so wish and in that regard they should correspond with the Registry Manager in order that any necessary arrangements are made.

1. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child K born in June 1993.

1. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as practicable for appropriate representation for the child.

1. The solicitor for the respondent is to advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of New South Wales of this order immediately.

1. Each party make available to the Legal Aid Commission of New South Wales, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

IT IS NOTED

1. The Applicant Maternal Grandmother opposes the appointment of Ms S as the Independent Children's Lawyer it being the case that Ms S previously represented the child in earlier proceedings.

1. The Applicant Maternal Grandmother will seek to communicate to the Independent Children's Lawyer matters of concern to her and the Mother and also concerns relevant to the proceedings that may be the subject of subpoenas issued at the request of the Independent Children's Lawyer.

IT IS FURTHER ORDERED

1. Leave to approach the Listing Manager for the first date of a Less Adversarial Trial.

1. The Court requested that the Registry make arrangements for the availability of an Auslan interpreter to assist the Mother on the adjourned date AND in the event that the Mother elects to attend by video-link or telephone then those arrangements may need to be made through the Melbourne Registry.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4662 of 2003

MRS MORTENSON

Applicant Maternal Grandmother

And

MS PARKER

Respondent

And

MS MORTENSON
Mother

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, who I understand is 13 and a half years of age.  There are some orders from 2005. The child's mother and maternal grandmother now seek orders whereby they spend time with the child.  The matter was in the list on a previous date and orders were made based on there being an independent children's lawyer but no order was actually made for the appointment of an independent children's lawyer. The parties have had mediation, and the mediator has recommended, among other things, that there be an independent children's lawyer. That recommendation is understandable given the age of the child and the fact that there are quite serious allegations being made in respect of the matter.

2. I have tried to explain to the applicants that notwithstanding the mix-up, the best way forward is to appoint a lawyer to represent the interests of the child. That representative can put the child’s wishes before the court, should the child wish to express any wishes and to marshal any independent evidence to assist the parties or the Court in relation to the case. That appointment is necessary. Another problem today is that despite a direction made on the last occasion, there is no Auslan interpreter for the mother, and I have apologised in relation to that.  That is just a slip-up we have made.

3. The applicants travelled from Melbourne to be here today. I have explained to them that they are not required to do that. They say that they would prefer to attend in person and that is their absolute right.  I have explained to them that because these are interim proceedings, either or both of them could attend by telephone or attending by video-link should they so wish.  It is regrettable that in the circumstances they have travelled here at their own expense and nothing has been achieved.

4. The maternal grandmother says she would like some time with the child, even if it has to be supervised.  That is opposed.  This is the subject matter of the proceedings and I cannot just sweep aside the concerns that will be expressed on behalf of the respondent simply because the applicants have been inconvenienced.  It may turn out that there is absolutely no reason why the child should not spend time with the applicants.  It may be that it transpires that she wants to spend time with the applicants, but at the moment our procedures have it that it would be respectful in relation to a child of this age to allow her a chance to be independently involved in the proceedings and we will proceed in that way.

5. The fact is that the maternal grandmother has not seen the child for about five years. She says there is an explanation for that and she has been involved in agitating on behalf of her granddaughter during that period. There were also the proceedings in 2005.  We will try and get to the bottom of all that in the course of the proceedings.  I have also told the parties the focus really should be the final hearing rather than interim proceedings because the Court is always going to be cautious in interim proceedings where it is difficult to make decisions about the truth of any seriously contested fact.

I certify that the preceding five paragraphs (5) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  9 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Mortenson & Parker & Anor