Pearce and Lear

[2007] FamCA 198

FAMILY COURT OF AUSTRALIA

PEARCE & LEAR [2007] FamCA 198

FAMILY LAW - INTERIM CHILDREN'S ORDERS

Family Law Act 1975 (Cth)

APPLICANT: MS PEARCE

RESPONDENT: MR LEAR

FILE NUMBER: MLC 2330 of 2007

DATE DELIVERED: 8 MARCH 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 8 MARCH 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HALL

SOLICITOR FOR THE APPLICANT: MIDDLETONS

COUNSEL FOR THE RESPONDENT: MS TEICHER

SOLICITOR FOR THE RESPONDENT: DAVOD STAGG TONKIN & COMPANY

Orders

1. THAT the orders of Watt J pronounced 2 March 2007 be discharged.

2. THAT the child of the marriage a son born in September 2005 live with the husband:

   (i)         on each Monday between the hours of 11.00 a.m. and 5.00 p.m.;

   (ii)commencing on each Friday at 11.00 a.m. until Saturday 5.00 p.m. (inclusive).

3. THAT otherwise the child live with the wife at all other times.

4. THAT for the purposes of collection and delivery of the child the wife is to collect him on each Saturday at 5.00 p.m. from the front gate of the husband’s residence but otherwise each other occasion of changeover is to occur at the front gate of the wife’s current residence in W.

5. THAT the parties, until the adjourned hearing date share the parental responsibility for the care and upbringing of the child.

6. THAT the husband forthwith enrol in and, as soon as practicable, complete a parenting course as recommended by his solicitor.

7. THAT the husband be restrained from consuming alcohol for the period of twelve (12) hours prior to and during the periods when the child is with him.

8. THAT each of the husband and wife be and are hereby restrained from abusing, threatening, insulting or denigrating the other.

9. THAT each of the husband and wife be and are hereby restrained, until further order, from removing or permitting the removal of the child from the State of Victoria.

10. THAT the husband and wife forthwith make appropriate arrangements for the delivering to the wife and thereafter her having the use of the 1999 Jeep Cherokee motor vehicle registered number … .

11. THAT the applications in respect of the sole use and occupation of the former matrimonial home at B be adjourned for hearing, if time permits, to the adjourned date.

12. THAT all extant applications be adjourned for hearing in the Judicial Duty List on 11 April 2007 at 10.00 a.m.

13. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the solicitors for the parties.

14. THAT pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” and these particulars are included in these orders.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the parties.

IT IS NOTED:

A.THAT it has been suggested to counsel appearing for the parties, and with the parties in Court that they need forthwith to engage a Family Consultant or psychologist to assist each of them with their issues with the child or otherwise to commence preparation of a report for the further hearing on issues of and related to the child’s welfare, upbringing and best interests, such report to be obtained altogether out of court and at the joint expense of the parties.

B.THAT the request for the appointment of an Independent Children’s Lawyer was declined.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2330 of 2007

MS PEARCE

Applicant

And

MR LEAR

Respondent

REASONS FOR JUDGMENT

1. The matter of Pearce & Lear is before me for hearing in the Judicial Duty List.  Mr Hall of counsel appears for the applicant wife and Mr Teicher of counsel appears for the respondent husband.  Both parties and members of their family are in court.  This matter has proceeded on submissions.  I have allowed counsel approximately 30 minutes each and it is one of a number of matters that I am dealing with in a busy judicial duty list and with other matters waiting.  These extempore reasons for judgment must therefore be read and understood in the context of these circumstances.

2. The orders sought by the wife are best summarised in her amended application in a case filed by leave this day and handwritten minutes of proposed orders that counsel provided at the commencement of the case.  Otherwise, the wife has filed two affidavits on 1 March 2007 and the second affidavit filed by leave this day, and further affidavits from her mother and sister.  That is material which I have read and which has been supplemented by submissions from Mr Hall.

3. The father's counsel has likewise filed a minute of orders sought this day, which supplements the orders sought in his Form 2 application filed by leave on 8 March 2007 and the Form 1A response of that date.  The husband's affidavit, together with an affidavit of his sister, Ms M, was also filed on 8 March 2007 and I have read that material as supplemented by submissions from Ms Teicher. 

4. At the outset I understand and I have highlighted to both counsel that there has been a flurry of activity in terms of preparation and filing of affidavits, and the wife's second affidavit is 40 paragraphs, 15 pages in length.  The husband's instructions to his counsel have been aired and delivered this morning.  I have therefore been extremely reluctant to accept at face value all of the issues raised in the material, as this case is dependent upon many allegations, all of which are in contest. 

5. I have at the outset indicated to counsel that without cross‑examination and without any proper hearing it is impossible to make particular findings of fact and I will not do so.  I therefore emphasise in the context of the orders that I make that the allegations have not been investigated.  I have also made it clear to counsel during the case that there is an overabundance of allegations and the level of scrutiny of the conflict and tension between these parties is somewhat unnecessary for an interim hearing.  What it has done is further increase the acrimony and the tension between these two families. 

6. I have made the repeated suggestion that more effort, time and clearly money should be put into post‑separation counselling, parenting courses and a proper report, helping these parties to deal with their inability to have any commonsense discussion, one with the other, and to know and to understand the needs of the child, who was born in September 2005 and is thus 18 months of age today.

7. The background to this matter is that there was an order made on 2 March 2007, upon the application of the wife, for a recovery order and for the husband to return the child to the wife.  That was facilitated in the context of the circumstances described in the affidavit material of the following day and the matter was otherwise adjourned for further hearing on this day. 

8. One of the applications before the court is for the sole use and occupation of the former matrimonial home in B.  I have indicated to counsel during submissions that I will not be entertaining that application today; time does not permit, and the material of a financial nature is such that that decision cannot be properly made.  I will specifically reserve that application to an adjourned date in this Judicial Duty List. 

9. It may be that commonsense requires the immediate sale of the home and the parties using those moneys to support themselves or otherwise to provide for their future on some financial basis of division to be agreed.  I am not saying necessarily that would be the order of the court, but I simply am not going to venture into any use and occupation order today.  The husband is in the home.  He now works from the home.  The wife vacated the home.  It may be that in a future hearing there is a total reversal of that situation.  I do not propose to speculate one way or the other and I do not propose to make an order validating the husband's occupation of the home pending further hearing. 

10. Both parties have sought the appointment of an Independent Children's Lawyer.  I do not propose to make such an appointment, given the age of the child.  The issues in this case are largely matters of conflict between the parents and they need to sort those issues out themselves or with such professional assistance as they can gather. 

11. Turning to the child’s interests, which are the primary concern, the proposed orders sought on behalf of the parents are at the extreme in both cases.  The wife would have an order that the child live with her and the father spend time with the child on a supervised basis by her or her agent on each Wednesday from 2.00 p m. to 5.00 p.m. inclusive and each Saturday from 2.00 p.m. to 5.00 p.m. inclusive, that is a total of six hours per week, with no overnight time. 

12. On the other hand, the father's proposal, somewhat remarkably, is that the child spend time with him on a week about basis from Friday afternoon until Monday morning and then again from Wednesday afternoon until Friday afternoon, and in the other week from Monday to Wednesday.  I regard both proposals as largely self‑interested and miles apart from the best interests of the child.  I am conscious of the child's age. 

13. I understand that it is suggested by the wife, and probably correctly, that she has been the parent most involved in the child's upbringing, in part simply because the husband had work circumstances out of the home in his business as a jeweller.  The reality is that the child needs time with both parents and my orders will ensure there is time spent, albeit unequal time.  My intention with these interim orders is that, at the request of the parties, they will last for approximately one month, and otherwise this matter will be adjourned to a date to be fixed, which I intend to be 11 April in this Judicial Duty List. 

14. I have had specific regard to the amendments within the Family Law Act (the Act"). My commencing position is of course what is best for the child and I have determined what is in his best interests primarily on the basis of section 60CC of the Act and, insofar as primary considerations are concerned, the benefit to the child of having a meaningful relationship with both parents. That could not be accommodated on the proposals the wife put forward. The other primary consideration is the need to protect the child from the physical or psychological harm or being subjected or exposed to abuse, neglect or family violence.

15. This case is littered throughout the affidavits with issues of language, abuse and poor conduct by the parents.  The child, unfortunately, had one very serious incident where he ingested portions of a crayon and required urgent medical assistance.  Without medical evidence and cross‑examination I am not prepared to lay the blame for that at the foot of the father, with whom he was then residing. 

16. However, and as I have said during submissions, both parents, but particularly the father, are absolutely on notice as to ongoing supervision, care and protection of a very vulnerable 18‑month‑old child.  I do not, however, in this case regard sub-section  (b) of section 60CC(2) such as would otherwise cause me to reduce periods where I propose to permit the father to have time with the child. 

17. The various additional considerations in subparagraph (3) of this section are generally important and in particular the issues of the capacity as parents and the attitude of each of the parties as parents, and I have had due regard to all relevant matters in that regard in determining this interim order.  The circumstances of this case and the age of the child and the material is such that, in my view, there should not be equal shared time.  In terms of responsibility, I am content for there to be a requirement for the parents to share responsibility, though that is on an interim basis and can hereafter be varied on a further hearing and on appropriate evidence.  I will apportion time that I regard to be both substantial and significant to the father, though will certainly not be in any way equal time.

18. One of the interim issues to be determined is the categorisation of the periods the parties spend with the child.  I will provide for the periods when the child will live with the father and he will then live with the wife at all other times.  There is not a technical issue arising out of this judgment insofar as he will live with one party and spend time with another party.  That may be the ultimate scenario in this case, but that can be determined when there is more time and evidence and hopefully a counselling, family consultant report before the court.

19. For those brief extempore reasons therefore - I do not have the time to further extend this interim extempore judgment but I specifically indicate that I have considered and applied all aspects of the Act relevant to interim orders, and certainly counsel have otherwise not addressed me on any particular case, Full Court authority or otherwise on any other section of the Act. 

20. There are a number of specific issues.  I will order that the husband not consume alcohol in the period prior to or during his time with the child.  There will be a mutual non‑denigration order directed at both parents.  I will order that the child is not to be removed from the State of Victoria by either parent without the prior written agreement of the other.  I will require the husband to undertake a parenting course.  As I understand - and in effect, by agreement - the one reliable motor vehicle of the family, which is a 1999 Jeep Cherokee, registered number …, can and will be delivered up to the wife for her interim use, but that is wholly a matter that a judge on a further adjourned hearing can review and I do not intend my order to be in place until some future property determination date.

21. For those reasons, I now turn to consider what I regard as an appropriate division of time for the child.  The wife has indicated that Sunday is a priority day for her, and the husband is prepared to accommodate that arrangement.  The wife has indicated that, if there is time that the husband is to have with the child, then it should be on a Monday and/or a Friday; I will endeavour to incorporate those days, as the husband works from home and has no objection.  

22. I pronounce these periods on the basis that they are interim orders.  The matter can be substantially reviewed, if time permits, on 11 April, which is the approximate date to which counsel have asked to have this matter stood over.  I will order that the child be with the father on Monday from 11.00 a.m. until 5.00 p.m. in each week and on Friday from 11.00 a.m. until Saturday 5.00 p.m., that is overnight, each and every Friday night in each week.  I do not propose to make any other orders for holidays. 

23. I do not propose to make any supervision order.  However, I have made it abundantly clear to the husband and with members of his family in court that there should be some level of presence of members of the family during daylight hours.  I am not extending that to a supervision order and I am not requiring any undertaking to be given by members of the husband's family who are or have been in court with him.  Likewise, I have, in my earlier discussions with counsel, made it abundantly clear that there is a very, very marked level of responsibility on the husband to care for and provide for the child, without incident.

24. For those brief extempore reasons, I will now pronounce the orders.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 15 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as PEARCE & LEAR