Olivier and Olivier

[2018] FamCA 272

FAMILY COURT OF AUSTRALIA

OLIVIER & OLIVIER [2018] FamCA 272

FAMILY LAW – ORDERS – Previous orders discharged - CHILDREN - Parental responsibility – Non-supervised time – Live with mother – Live with father

APPLICANT: Mr Olivier

RESPONDENT: Ms Olivier

INDEPENDENT CHILDREN’S LAWYER: Ms S Hiles

FILE NUMBER: CAC 1245 of 2017

DATE DELIVERED: 23 April 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 23 April 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. The order of Judge Tonkin made on 28 September 2017 (Order 3) providing that the father have sole parental responsibility for the children is discharged.

2. The order of Judge Tonkin made on 28 September 2017 (Orders 4, 5 and 6) that provides for the mother have supervised time with the children is discharged.

IT IS NOTED THAT

1. At present the mother and father share the same residence with the children.  It is not clear whether this arrangement will continue.

IT IS FURTHER ORDERED THAT

1. Order 2 of the orders made by Judge Tonkin on 28 September 2017 is amended until further order, such that the children will live with the father and with the mother.

2. The proceedings are adjourned for interim hearing to determine the living arrangements for the children in the event that the parents do not share the same residence to 4pm on 1 May 2018.

3. In the event that either party seeks to rely upon affidavit evidence in relation to that hearing that party is to file and serve a single consolidated affidavit by close of business on Friday, 27 April 2018.

IT IS NOTED THAT

1. It is anticipated that for the purposes of the interim hearing the parties will rely upon the report prepared by Dr B and Dr C.

2. The father has agreed that he will attend the Circles of Security Program and that he will continue to attend upon Ms D for psychological support.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Olivier & Olivier has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1245 of 2017

Mr Olivier

Applicant

And

Ms Olivier

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has been governed by temporary orders made by Judge Tonkin on 28 September 2017. However, the parties have not conducted themselves in accordance with those orders.  Those orders were made in the context where the mother had recently been hospitalised into a psychiatric unit and the orders were made following a contested hearing.  Subsequent to that, the parties have co-resided and shared the care of the children despite there being orders in place for supervised time only with the mother. 

2. The matter comes back before this Court following the release of the Single Expert's report prepared by Dr C.  The report of Dr C is contentious, at least on the part of the father.  It appears that competing issues are raised in the proceedings.  Each of the parties is concerned that the other will remove the children from that party's care.  The father is concerned that risks may emerge related to what he says about the mother's mental health, although he says that those risks do not appear to be currently present on the basis that the mother is taking medication as directed.  The mother has raised issues about whether or not there is a risk of harm (in particular, sexualised harm) posed by the father to the children.  These competing risks were in play at the time that Judge Tonkin determined the interim hearing of the matter, but are now addressed more fully in the contentious report by Dr C. 

3. The father has agreed to the removal of the sole parental responsibility and supervised time orders, quite sensibly given the manner in which he has to date conducted the proceedings.  On that basis those orders may reasonably be discharged, particularly as their discharge is given some support in the report prepared by Dr C. As noted only limited weight can be placed on that report at the moment because it is both contentious and unable to be tested at present.

4. Having attended Court today the parties have not attended with affidavit material, or even an articulation of the orders that they were seeking for today.  However, with the assistance of the Independent Children's Lawyer, the dispute seems to have narrowed somewhat.  The father's position is that the parties should continue to share the care of the children unless they cease to co-reside at which point he says that there should be a four/three split each week in favour of the mother.  The mother's position, if they do not continue to co-reside, is that orders should be made in accordance with those recommended by Dr C at [275] of her report, being orders to be put in place should the parties separate.  Those orders would mean that the children would reside primarily with the mother and there would be time spent with the father each second weekend and during school holidays and special occasions.

5. The matter is to be adjourned to 4pm on 1 May 2018 for further hearing in order to allow the parties to present material to assist in the interim resolution of what living arrangements for the children will be in the light of the competing risks each of the parents has identified.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 23 April 2018.

Associate: 

Date:  23 April 2018