Patterson and Nugent

[2009] FamCA 544

FAMILY COURT OF AUSTRALIA

PATTERSON & NUGENT [2009] FamCA 544

FAMILY LAW – CHILDREN – Consent orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Patterson

RESPONDENT: Mr Nugent

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 12808 of 2007

DATE DELIVERED: 5 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Randles

SOLICITOR FOR THE APPLICANT: Randles Cooper & Co Pty Ltd

THE RESPONDENT: Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms M.E. Agresta

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S

LAWYER:

Victoria Legal Aid

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the mother engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That pursuant to s.65DA(2) and s.62B, the particulars of 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 these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12808 of 2007

MS PATTERSON

Applicant

And

MR NUGENT

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is a case involving a little boy, who is not far off three years of age.  His parents are, in some people's eyes, fairly young to be the parents of a child, and their relationship did not get off the ground all that well.  The argument essentially since the proceedings began has been about the risk that the child faced by being cared for predominantly by his mother because of a problem associated with alcohol, and that theme has run through a number of hearings in this Court. 

2. It is interesting to note that on 28 March last year, psychiatrist, Dr K in an affidavit that was filed in this Court, recommended that the mother have supervised contact with the child and made it very clear that he had serious concerns about her use of alcohol.  The Court treats the risk factors in relation to all children extremely seriously.  The Family Law Act 1975 (Cth) (“the Act”) provides that a court does not necessarily have to make a finding that orders are in the best interests of children if the parties consent to those orders.  However, there must at all times be an overriding consideration as to whether those orders are in the best interests of children when the Court is actually handed a lot of material over a space of time, indicating that there are serious risks.

3. What is very encouraging today is that the Independent Children's Lawyer has looked at all of the factors that I would have looked at and balanced the risks against the good side of the future parenting for the child.  This is one of those cases where the Court can only do so much, and in many ways, the future of this little boy is in the hands of his parents.  If the problems that have been exposed throughout the proceedings continue, then leaving aside the question of further litigation, ultimately it is the child who suffers. 

4. There is good news in this case because the parties for the first time seem to have really worked out a lot of the things that are in dispute between them so that they can start to do what good parents always do, which is work out decisions for the future of their children together.  I am also comforted by the fact that both sets of grandparents are supportive and not too far away, and as Ms Agresta has said, certainly the maternal grandfather would step in and ensure that the child was not at risk at any stage.  I can do no more than say that on the material that I have read, notwithstanding all of the horror stories that I read early in the file, this is one of those cases where I think I can confidently say that these orders are in the best interests of the child. In those circumstances, I will make orders by consent of the parties and the terms of the minutes.  I will mark those as an exhibit.  I will leave them on the court file.  I will ask the solicitor for the mother to engross the minute and email it to my associate within seven days, and upon them being received, then the orders will formally issue.  They will not issue until that formal-type order is received.  The orders specifically provide for the discharge of the Independent Children's Lawyer but not for quite some time, and otherwise all proceedings are otherwise dismissed. 

I certify that the preceding Four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 June 2009