Osland and Rankin

[2007] FamCA 1728

FAMILY COURT OF AUSTRALIA

OSLAND & RANKIN [2007] FamCA 1728

FAMILY LAW – CHILDREN – Child related proceedings – Appointment of independent children’s lawyer – Referral to LAT program

Family Law Act 1975 (Cth) s 68L, Div 12A.

APPLICANT: Mr Osland

RESPONDENT: Ms Rankin

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1983 of 2007

DATE DELIVERED: 18 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 18 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.J. Cantwell

SOLICITOR FOR THE APPLICANT: Hogg and Reid

COUNSEL FOR THE RESPONDENT: Ms Griffin

SOLICITOR FOR THE RESPONDENT: Anthony Peterson & Co

Orders

1. A Trial Notice issue pursuant to Division 12A.

2. Pursuant to Section 68L the Family Law Act 1975 the children B born … October 1997 and R born … April 2000 be represented by an Independent Children’s Lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

3. Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

4. Within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

5. All interim applications be dismissed.

6. For the purpose of paragraph 1 hereof all final applications be given priority for a first day LAT hearing at 10:00am on 19 September 2007.

7. All questions of costs be reserved.

8. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1983 of 2007

MR OSLAND

Applicant

And

MS RANKIN  

Respondent

REASONS FOR JUDGMENT

1. The parties separated in October 2002 following a marriage of just over nine years.  They have two children, B, aged nine, and R, aged seven.  On 27 March 2007, consent orders were made by a registrar which provided for B and R to live with each of the parents on each alternate week, with changeovers on Mondays.  That week-about arrangement has existed until the present time.  The parties are now in dispute as to whether that equal shared arrangement should continue. 

2. By application by the husband, it is sought to alter that arrangement by providing a certain amount of extra time on a fortnightly basis to the husband essentially by way of a 9:5 split in his favour.  The orders which were made in March contained mutual undertakings by the parties pursuant to which each of them was restrained from denigrating the other in the presence of the children and allowing others to do so and likewise discussing proceedings.  Of greatest importance in the present purposes is the mutual undertaking that:

   Neither shall administer any form of corporal punishment to the said child or children or allow others to do so.

3. The parties have also engaged Ms S, a registered clinical and forensic psychologist, to prepare a report.  That report was prepared for today's proceedings.  Ms S is a very highly experienced and competent practitioner in the field and of course spent many years on the court's staff in its mediation section and most recently as its acting director.  As one would expect, her report is thorough and detailed and I found it to be of great assistance.

4. However, as with all proceedings conducted on an interim basis in the judicial duty list, I have not had the advantage of any challenge by way of cross‑examination to either the report of Ms S or any of the other affidavit material which I have read, being affidavits of each of the parties and their respective partners.

5. Each of the parties has repartnered.  On the husband's side, his partner, recently his wife, and he have a very young baby.  His wife has a child who spends time with her former partner.  Likewise, the wife in these proceedings has a partner who sees children by a previous relationship on a regular basis.  That partner of the wife, Mr T, in my view represents the most difficult part of the wife's case that the shared week and week-about be maintained.  In my view, some of the behaviour of Mr T has been contrary to the best interests of the children who are the subject of these proceedings.

6. In September last year, Mr T wrote an email to the husband which is aggressive, insulting and confrontational. Other than to refer to it as annexure MWO2 to the husband's affidavit before me, I do not find it necessary to give any further detail.  The content of the affidavit supports the basic contention of the husband that the relationship between Mr T and therefore potentially the wife and the subject children has some negative aspects to it.  There are a number of allegations in the husband's affidavit with regard to unsatisfactory parenting by Mr T, involving inappropriate disciplining.  That has included the use of a wooden spoon, together with verbal abuse which in my view is contrary to any child's best interests.  It is of no benefit at all to suggest that the wife and the husband may have at some time used a wooden spoon on the children as well.  My simple response to that is that such behaviour is open to criticism, no matter who perpetrates it and when.

7. Ms S lends some support to the husband's concern with regard to Mr T when she quotes Mr T as admitting that he has a "short fuse".  He says that that is "especially when he believes that the wife is being undermined by the husband".  Mr T also admitted to Ms S that he had sent that email in September last year.  The wife's counsel was unable to refer me to any material from Mr T, indicating contrition or regret at his actions. 

8. The child, R, described Mr T as "someone who was strong and someone who could be helpful but was scary".  Ms S stated:

   His sadness was evident when he said he "always felt caught in the middle" of his parents.  Emotionally he is attached to his mother and indicated that his mother understood him most of the time.  However, he found his father was more involved and interested in his play and in the tasks that he liked as compared to his mother.

9. That last quote confirms the impression that I have gained from the material, my observation of the parties in court and the submissions which have been put - and I make no criticism of counsel in this regard - that the relationship between the parties is highly conflictual and I cannot see how it could be possible that such conflict could be considered to be in the interests of the children.  The parties may take that statement as a direct criticism of each of them. 

10. I have noted the making of the orders in March of this year.  Counsel for the husband was unable to refer me to any material containing any allegation of inappropriate parenting of either child by the wife and particularly Mr T since the making of those orders; in fact the last reference was approximately a month prior to the orders.  These orders were made by consent and a little less than three months ago.  There is no independent children's lawyer and there is a very significant dispute on the facts between the parties. 

11. There is also a dispute as to part of the contents of Ms S's report and also the conclusions which she has derived.  With no criticism, I have been unable to explore the possible consequences to the children of altering the amended equal sharing regime on a further interim basis.  My experience suggests that there are probably positive and negative aspects to such a course and in the circumstances, I must be wary about that.

12. I have accordingly decided that while there is some suggestion of a risk being posed in the wife's household, particularly by Mr T and his disciplining of the children, I am not satisfied that that risk is sufficient to warrant the variation of these interim orders on an interim basis.  However, there are issues which need to be tried and the parties have gone to the trouble and expense of obtaining a detailed and comprehensive report on issues relevant to the proceedings.

13. Accordingly, I propose appointing an independent children's lawyer, dismissing the interim applications, and referring the proceedings to the less adversarial trial which is known as LAT.  I am told that that is not a universally known acronym.

14. The proceedings will be listed before Carter J for a first hearing in her LAT list at 10 am on 19 September 2007 and for that purpose, I am providing priority to enable that to take place.  There will be the usual orders for the conduct of the proceeding pursuant to division 12A, the referral to Carter J as listed, and that each party complete and serve the questionnaire form at least five days before the commencement of the trial.  There is to be no affidavit or witness statement filed without leave and no subpoena is to be issued without leave.

15. As to the trial fee, the applicant husband will either pay the trial fee or obtain an exemption or waiver by 4 pm on 13 July 2007.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate                  

Date:  18 June 2007