Pedin & Rian

[2009] FamCA 610

FAMILY COURT OF AUSTRALIA

PEDIN & RIAN [2009] FamCA 610

FAMILY LAW – CHILDREN – Interim – with whom children spend time

APPLICANT: Ms Pedin

RESPONDENT: Mr Rian

FILE NUMBER: MLC 619 of 2009

DATE DELIVERED: 13 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE APPLICANT: NA

COUNSEL FOR THE RESPONDENT: Mr Combes

SOLICITOR FOR THE RESPONDENT: Clarke & Barwood

First orders

IT IS ORDERED:

1. That henceforth the file in this matter travel together with the Federal Magistrates Court file in matter number MLM 3382 of 2006 and with the Family Court of Australia file in matter number MLF 3648 of 2005.

Second Orders

IT IS ORDERED:

1. That the further hearing of the mother’s application filed 27 January 2009 and the father’s response thereto filed this day is adjourned to 27 February 2009 in the Senior Registrar’s Duty List at 9.45 am for a determination of issues of interim time to be spent between the father and the children J born … October 1999 and A born … March 2002.

2. That pursuant to section 11F of the Family Law Act 1975 the parties to the proceedings attend an appointment/series of appointments with Mr N, Family Consultant, of this Registry of the Court and as part of the family’s participation in the Child Responsive Program:-

   a)   The appointments which the parties kept with Mr N this day;

   b)     The parties are to attend at Level 5 of this Registry of the Court at 9.30 am on 19 February 2009;

   c)     The father is to be responsible for bringing the children to the Registry on 19 February 2009 at 9.30 am and the time to which the father is entitled pursuant to paragraph 9(c) of this Order be, and is hereby, extended until then;

   d)     The sequence and organisation of interviews is a matter within the sole discretion of the Family Consultant; 

   e)     The Family Consultant may appoint further interviews for the parties and the children; and

   f)   It is requested that the Family Consultant prepare an issues assessment in writing and that issues assessment be made available to the parties, their practitioners and the Court prior to the adjourned date.

3. That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children J born … October 1999 and A born … March 2002 independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the children by the next return date AND IT IS NOTED that Mr Paul Cahill has previously been the independent children’s lawyer.

4. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

5. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

6. That  the father do all acts and things necessary to undergo a liver functioning test and provide the results of same to the independent children’s lawyer when appointed and to the mother and to have a copy of the results available to the Court on the return date.

7. That in the preparation of the child and issues assessment the family consultant have access to all affidavit material on the Court file and on the file of the previous Magistrate’s Court proceedings and to any documents that are produced pursuant to subpoenae.

8. That the mother and the father do and hereby provide their authority for the independent children’s lawyer and/or the family consultant to discuss J’s wellbeing with his treating psychologist, Dr P, of … Road, C.

9. That until 6.00 pm on 27 February 2009 paragraphs 4(a) to 4(c) of the Orders made 6 June 2007 be suspended and in lieu of that time the children spend time with the father as follows:-

   a)On 14 and 15 February 2009 from 1.00 pm to 8.00 pm;

   b)On the weekend of 21 and 22 February 2009 from 10.00 am to 8.00 pm;

   c)Each Wednesday from 3.30 pm until 9.00 am on Thursday; and

   d)Each Monday from 3.30 pm until 7.00 pm.

10. That until 6.00 pm on 27 February 2009 the father be and is hereby restrained from consuming any alcohol whilst he has care of the children, or either of them, and/or from consuming alcohol for twelve (12) hours prior to the scheduled commencement of any time that he will spend with the children.

11. That by not later than 4.00 pm on 23 February 2009 the parties file and serve any further affidavit material that he or she relies upon.

12. IT IS REQUESTED that Mr N, Family Consultant, be available to give evidence and be cross examined on 27 February 2009.

13. That the reasons for judgment this day be transcribed and that when transcribed copies be made available to the parties and to the independent children’s lawyer when appointed.

14. That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 619 of 2009

MS PEDIN

Applicant

And

MR RIAN

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before me in the judicial duty list on the mother's application filed on 27 January 2007 in respect of J born in October 1999 and A born in March 2002.  The children have not spent time with the father since mid-January 2008 and the mother seeks orders to legitimise that position and alter how and when the father can spend time with the children into the future.  

2. I stood the matter down this morning and directed that both parents attend upon a family consultant.  Mr N.  They did so.

3. The issue that I am required to determine today is whether to suspend current orders and, if I do, what time the children should spend with the father between now and the date on which the matter can be back before the court in a more manageable form, with the benefit of an assessment by a family consultant who has seen the children and, hopefully, the input of an independent children’s lawyer.  

4. The adjourned date will be 27 February 2009.

5. The mother's position is that I should suspend the current order and between now and 27 February 2009, the father can see the children daily.  He can see the children on weekdays between 1 and 3 pm.  She does not want him to spend time with the children overnight.  She seeks an injunction prohibiting the father from taking the boys to a hotel or any licensed premises whilst he is spending time with them.  She seeks an order that the father not consume any alcohol during his time with the children or within 12 hours prior to his time with the children.  She seeks an order for a psychiatric assessment of both of them.  However, at the moment, neither she nor the father are in a position to fund such an assessment.

6. The father's position is that he wants the existing orders to operate.  He denies the mother's allegations (which I will discuss later).  He alleges that she has exaggerated or fabricated the matters in her affidavit.  It may be that she has done so maliciously or done so because they are her perceptions, but either way the evidence of the mother is, he says, inaccurate.  The father says, through his counsel, that he will undergo a liver function test.  He agrees on the restriction in relation to alcohol between now and the matter being before Senior Registrar Fitzgibbon on 27 February 2009.  It is submitted that he does so for peace of mind of the mother and the Court.  He said that he denies the need for it.  He agrees that the independent children's lawyer should be appointed again and he agrees to attend the further session with Mr N, the family consultant, and that the children should be seen as well.

7. The operative order is expressed to be made, by consent, on 6 June 2007 by Federal Magistrate Connolly at which point both parents were legally represented and had counsel and Mr Skerlj appeared as counsel for Mr Paul Cahill, then the independent children’s lawyer.  I received some explanation as to how the relevant minutes were signed by the mother on 30 June 2007 and by the father on 2 August 2007 but orders were made in those terms by the Federal Magistrates Court on 6 June 2007.  Nothing turns on it.

8. Relevantly, the Order of 6 June 2007 provides:-

   1.That the Applicant and Respondent have shared parental responsibility in relation to the children [J] born […] October 1999 and [A] born […] March 2002 (“the children”).

   2.That the Applicant and Respondent have sole responsibility for making decisions concerning the care, welfare and development of the children on a day to day basis when the children are in their respective care.

   3.That the children live with the mother.

   4A.(a)       That the father as soon as practicable undertake and successfully complete an alcohol rehabilitation or treatment program as nominated by the Independent children’s lawyer and provide evidence of it’s completion to the mother.

   (b)upon compliance with paragraph 4A(a) herein the father spend time with the children as soon as practicable and in compliance with paragraph 4 hereafter.

   (c)The father submit himself to the program/counsellor nominated by the Independent Childrens’s Lawyer and follow all reasonable lawful directions made by the counsellor conducting such program.

   4.        That the father spend time with the children as follows:

   (a)Each alternate weekend from 3.30 pm Friday until 9.00 am Monday.

   (b)Each alternate week from 3.30 pm on Thursday until 9.00 am Friday.

   (c)Each alternate Monday from 3.30 pm until 7.00 pm.

   (d)The periodic time the father spends with the children pursuant to paragraph 4(a),(b), and (c) continue to be operative during the gazetted school holidays until the first term holidays in 2008 save for:

   i.Paragraph 4(a) shall be varied to extend to Monday 5.00 pm during the school term holidays in September 2007 and

   iiparagraph 4(a) shall be extended to Wednesday at 9.00 am during the 2007/2008 long summer holidays.

   (e)For one half of each school term holiday periods in 2008 and each year thereafter to be fixed by agreement and failing agreement the first half commencing at 4.00 pm on the first Friday of any designated school holiday period.

   (f)For two weeks in the long summer holidays each year at times to be agreed by the parties but failing agreement from 4.00 pm on the 1^st of January until the 15^th of January each year commencing 2008/2009 long summer holidays.

   (g)That the father’s time spent with the children pursuant to paragraph 4(a), (b) and (c) be suspended during school holiday periods.

   5.That for the purpose of paragraph 4 of these Orders the mother shall deliver the children to the father at the commencement of the father’s time with the children and shall collect them from the father’ home at the conclusion of the father’s time with the children.

   6.That the mother and father when the children are in their care shall allow the other parent reasonable and liberal contact with the children by telephone.

   10.That the father be restrained from consuming alcohol 8 hours prior to driving the children in a motor vehicle.

   11.That the father not consume alcohol to excess when the children are in his care.

9. Today, the mother appears on her own behalf and seeks final orders that are open to interpretation but clearly indicate that she has protective concerns about the continued operation of existing orders.

10. The interim orders sought by the mother in her application are that:-

    a)the father not consume alcohol when he has time with the children;

    b)the father not take the children to any hotels or licensed premises;

    c)that "the children not stay overnight with the father until such time as he has undertaken a complete psychiatric assessment to diagnose the mental health issues that drive his need to drink, and his denial of that need."

    d)that "overnight contact be resumed at such time as the father has adequately stabilised his mental health through comprehensive medical treatment, eg, medication which he has undertaken to maintain."

11. The interim orders sought by the mother provide for specific time between the father and the children from 1 to 5 pm every Monday and Wednesday, Saturday from 9 am to 5 pm, and on special days and holidays.

12. It appears to be common ground that the father undertook and completed the program required by paragraph 4A(a) of the Order of 6 June 2007.  The mother submits that the course did not do the father much good because he has not been either alcohol-free or only a moderate consumer of alcohol since he completed the course in December 2007.

13. I further note that paragraph 17 of the Order made 6 June 2007 provides for section 65L counselling, that is supervision, which was to be reportable for a period of 24 months.  It is apparent that this provision was not activated by either of the parties prior to the matter coming before me today.

14. J and A are not the only two children in the mother's household.  She and her husband, Mr Pedin, have care of five children.  Mr Pedin has accompanied the mother to Court today.  As to the children of the household:-

    a)C is 10 years of age. She is the child of the mother and Mr C, who preceded the father as the mother’s partner.  Mr C lives in very close proximity to the mother’s household and always has done.  He sees C daily.  Mr C also sees the other children in the household on an unrestricted basis. 

    b)J (the oldest child of the mother and father in this proceeding) is nine and a half years old;

    c)A (the youngest child of the mother and father in this proceeding) who is six and a half years old;

    d)L, who is three and a half years old and the oldest of the two children of the mother's relationship with Mr Pedin; and

    e)K, who is one year old and the youngest of the two children of the mother's relationship with Mr Pedin.

15. K and L are too young for formal education.  The mother home schools the other children.  J did formerly attend a state Primary School, but in 2007 was removed and the mother has home-schooled the children since then.  She says that A “chose” to be home schooled as a natural progression after seeing the happy experience of C and J.  She says that the children’s educational development is on track if not in advance of their peers, and that J is a child affected by ADHD and the concentrated environment of home schooling is better for him than the classroom.

16. The mother has compiled an affidavit which is partially handwritten and partially typed.  The allegations are that the father has either continued to drink alcohol excessively or to consume alcohol inappropriately whilst he has been spending time with the boys or either of them.  If he does not drink alcohol to excess, the mother clearly takes issue with the fact that the children are regularly at the local hotel.  She asserts that the children are “flipped” between the hotel that the father frequents and the place where he is employed.  It is part of her case that, whilst J and A might be occupied when in the father’s care, they lack a decent home life in comparison to their life with her and Mr Pedin and the other children.

17. The father is employed at SM Business which is a centre for children aged from infants to 12 years.  He works from 9.00 to 5.00.

18. The mother paints a picture of the time that the children spend with the father being anything but child-focused.  In spite of the ostensible appearance of spending time at SM Business it is the father's place of employment and not a place where he can give the children his undivided attention.  She has spoken from the bar table of the children playing electronic games to an extent that exceeds that which they are allowed to play in her household.

19. The father was served with the mother's applications on 29 January 2009, just in excess of two weeks ago.  No material was filed prior to today even though it should have been if the father proposed to rely upon it now.

20. Today Mr Combes has, with leave, filed a fairly lengthy affidavit by the father sworn or affirmed on 11 February 2009; an affidavit by a hotel attendant, Mr B, sworn or affirmed on 11 February 2009, and a response to the mother's initiating application.  The father seeks a dismissal of the mother's application.  He also seeks that the current orders be amended so that he can obtain copies of school photographs, reports, newsletters, notices, information pertaining to the children's education, progress, school activities, parent-teacher interviews, and access to concerts and the like.  This is a little curious because, as indicated, the children are home-schooled.  This is not a matter which was pressed today.

21. The father seeks an immediate resumption of the time that the children are entitled to spend with him under the 2007 orders.  That is frequent overnight and day time periods.  He last saw J and A on or about 19 January 2009.

22. As indicated, the parents saw Mr N, family consultant, this morning. The child dispute conference memorandum is on the court file.  The family consultant recommends:-

    •that a judicial decision is required;

    •that to assist the parties to settle the matter they should be referred to post-separation parenting courses;

    •that an expert report be prepared in the form of the longest, most thorough family report which would be offered by the Court; and

    •that there be a forensic psychiatric assessment in relation to both parents to examine the impact of alleged family violence and to examine the impact of alleged alcohol use or abuse.

23. It is apparent from my discussions in Court with counsel for the father and the mother that the parents are a very long way apart.

24. Mr N attended court and advised that he would be available to meet with the children and the parents next week and, thereafter, to complete a Child and Parent Issues Assessment.  I understand that appointments will occur on Thursday, 19 February.  It is anticipated that the family consultant will either have completed an Assessment in writing or be in a position to give evidence orally, but in any event be cross‑examined, on 27 February 2009.  After I determine what holding orders are appropriate, I propose to adjourn the proceedings to Senior Registrar Fitzgibbon on that date for a determination of what interim parenting orders should be made on the competing applications.

25. The evidence most relevant for today’s application is that which relates to events on Monday 19 January 2009.  That was a night in which J was in the mother's care. A was with the father.  The mother deposes in her affidavit to speaking to the father by telephone shortly prior to 8 pm, and identifying for herself that the father was affected by alcohol because he kept slurring his words and repeating himself.  The mother then spoke to A.  The mother deposes to A sounding "a bit edgy" which gave her cause for concern.  She formed the view that "the father was obviously drunk".  She called the police.  She went around to the father's house, which is located about five kilometres from her own, found that there was no car there.  She and her husband then went to the hotel frequented by the father at approximately 9.30 pm.  That is the E Hotel.

1. The mother deposes:

   His car was nowhere to be seen.  We knocked loudly on the front door but there was no response.  It was only then that it dawned on me that he must be at the pub with [A].  We got in the car and drove to the pub he regularly frequents and saw his car parked at the rear.  We spoke to the publican who was just closing up.  I told him we were looking for [the father].  He said, "Oh, don't worry, I'd expect he'd be tucked up in bed sleeping it off by now.  Don't worry, I look after [the father].  I organised a lift home for him with another customer about three-quarters of an hour ago."

2. The mother deposes that she and her husband Mr Pedin then went back to the father's house, knocked on the door, there was no response.  She went to the back door, she found it unlocked and open.  She went inside to see if the father and A were there.  The mother deposes to finding A and the father asleep on the sofa bed in the lounge room.  The father was sleeping soundly with A.  A was also asleep.  She deposes:

   “I considered leaving given that they were both asleep but I knew that if I did that and anything happened to [A] overnight I would never forgive myself.  I decided to wake [the father] and explain to him why I was there.  I have never intervened in this way during contact before and I did not do it without serious consideration of the possible consequences.  Once [the father] realised why I was there he sat up on the edge of the sofa and resumed drinking a glass of alcohol that was sitting on the table beside him.  He said he couldn't see the problem given that he was in bed and nothing was going to happen to [A].  I reminded him that the court order stipulated he was not to drink to excess.  He said, "What's excessive?"  I replied, "Slurred speech is excessive."  He said, "Oh, bullshit, I'm not slurring."  I said, "You're slurring now and you were at 8 pm this evening."  He said, "This is my time with [A] and you're not taking him."

3. There was then an altercation but it is common ground that the father permitted the mother and her husband to remove A from his house.  A has not seen his father since.  Either has J.

4. The father denies having consumed alcohol to excess.  He says that he asked for a taxi to be called because he is not permitted to consume any alcohol when driving the children.  It was not that he was inebriated and unfit to drive.  The father relies on an affidavit from the bar manager of the E Hotel, Mr B.  Mr B deposes to events which contradict much of what the mother deposes as being fact or assumptions which it was reasonable for her to make on that night.

5. Mr B’s evidence is:-

   5.I was the manager of the bar at the [E] Hotel and prior to Monday 19 January 2009 the Respondent Father had introduced me to [A].

   6.At approximately 6.00 pm on Monday 19 January 2009 I saw the Respondent Father enter the [E] Hotel with [A].

   7.Upon the Respondent Father’s arrival at the [E] Hotel I engaged in a conversation with the Respondent Father.  During that conversation the Respondent Father advised me that [A] and he had been at his place of employment since 9.00 am that day and had come to the [E] Hotel for dinner.

   8.During the course of the evening I observed the Respondent Father and [A] consumed a meal at the [E] Hotel.

   9.I served alcohol to the Respondent Father that night at the [E] Hotel. No one other than me served the Respondent Father alcohol at the [E] Hotel that night.

   10.I served approximately two standard glasses of wine to the Respondent Father over a period of approximately two hours.

   11.At approximately 8.10 pm that night the Respondent Father approached me and requested that I order a taxi for him and [A].  I was surprised by this request as the Respondent Father had only consumed a couple of alcoholic drinks and in my opinion I thought that he was right to drive a motor vehicle without breaching the relevant drink drive laws in Victoria.  To save the Respondent Father the cost of engaging a taxi I arranged for the chef who was coming off duty to give [A] and the Respondent Father a lift to the Respondent Father’s home.

   12.I observed the Respondent Father and [A] departed the [E] Hotel in the company of the chef at approximately 8.30 pm that night.

   13.From my observations of the Respondent Father that night at no stage did he display any behaviour which would suggest to me that he had been excessively drinking.  He was completely sober.  His behaviour was normal and his appearance was normal.  He did not have glassy eyes.  He was steady on his feet at all times that I observed him.  At no stage during any of the conversations that I had with him that night did he slur his words.  He did not smell of alcohol.

   14.Later that night I observed a car parked near the back entrance of the [E] Hotel at approximately 10.00 pm.  I was in the process of closing the Hotel as it was closing time.  I was leaving through the back door of the Hotel as all the other doors had been locked.   All the lights except for the fridge light had been switched off in the Hotel.  There were two people in the parked motor vehicle.  I observed the driver wind down his window.  I saw a female passenger, who was seated in the front passenger seat, lean across toward the driver’s window.  She called out to me and asked whether the Hotel was closed to which I replied that it was.  She said she was looking for the Respondent Father and pointed out that his car was parked in the car park.  I told this woman that the Respondent Father had gone home about an hour and half ago with [A] and that they were both fine and had had a meal that night at the Hotel.  At no stage during this conversation did I say to this woman “Oh don’t worry I expect he’d be tucked up in bed sleeping it off by now”.  At no stage during this conversation did I say to this woman “Don’t worry I look after [the father], I organised a lift home for him with another customer about three quarters of an hour ago”.  At no stage during the course of this conversation did I observe either the woman or the man take notes of the conversation.  The man and the woman left after this.  At no stage during this conversation did the woman identify herself as the Applicant Mother however I verily believe that the woman I spoke to was the Applicant Mother.

   15.As I was driving home with my son I observed as I was passing the Respondent Father’s house the motor vehicle in which the Applicant Mother was in parked in the street outside the Respondent Father’s house.

6. In the face of Mr B’s evidence, the mother maintains her version or events as being correct and her behaviour as having been reasonable.  She suggests that Mr B is the father’s friend and “is prepared to stick up for him”.  The inference being that Mr B has given false evidence to benefit the father.  This is a duty list.  There is no time for cross examination.  I am unable to reconcile the conflict in evidence today.

7. It is not clear to me why there appears to have been no communication between the father and A and/or J by telephone since 19 January 2009. Four weeks have gone by, if there has been no telephone call as well as no face to face time, that is most unfortunate, given that the parents live only five kilometres apart.  For the mother’s part, she says she contacted Paul Cahill, a solicitor who was formerly the independent children’s lawyer, and he suggested that she make an urgent application which she has done.

8. The father filed his material today which is unfortunate because it meant I could not read it before I commenced court this morning.  Pressure to hear the balance of cases has prohibited me from reading the father’s affidavit during the day and as thoroughly as I would have liked.  Fortunately, he is represented and his barrister has conveyed his case.  It appears that paragraph 31 of his affidavit sets out the nature of the denials that the father makes.  He deposes as follows:

   As to paragraph 3 of the Applicant Mother’s Affidavit I say as follows.  I admit that I commence a relationship with the Applicant Mother in or about October 1998.  I admit that we have two children from our relationship [J] and [A].  I admit that we were never married.  I vehemently deny that our relationship was very unstable due to my alleged drinking problem and to my alleged tendency to be violent when drinking excessively.  I vehemently deny that I had a drinking problem during the relationship.  I vehemently deny that I have a drinking problem now.  I vehemently deny that I have ever resorted to family violence either during the relationship or post separation.  These allegations have been contrived by the Applicant Mother solely for the purposes of these proceedings and have no basis in truth.  Our relationship from the beginning was unstable mainly due to the actions of the Applicant Mother.  The instability commence when I refused to agree to the Applicant Mother having an abortion when she was pregnant with [J].  She tended to fly off the handle at the smallest things and her temper was volatile.  For example, If I was late from work due to my work commitments, she would severely reprimand me without just cause.  As a result of the Applicant Mother’s erratic behaviour, we separated several times during the relationship and at my instigation after one of these separations, engaged in relationship counselling with a counsellor in an attempt to address the relationship issues between us.  The Applicant Mother was fickle in nature and it was as though one day we were in a relationship and the next we weren’t.  I vehemently deny that I have an undiagnosed mental illness and that I have supposedly been using alcohol to self-medicate for this.  This allegation has been made without a shred of truth and I consider, not only that this allegation is without any basis in truth, but it is defamatory in nature.

9. The mother did not seek an adjournment of today’s case to better prepare some response to the father’s material which she received last night (as opposed to the Court which received it today).  However, the mother has referred to the fact that there was extensive affidavit material filed in the Federal Magistrates Court and she will want to rely upon that material in due course.  The mother has referred to photos of bruising which were sustained by her at the hands of the father, and previous inappropriate drinking for the five years they lived together.

10. So, the parties are a long way apart.  What seems to be common ground, however, is that the mother has believed, even since the orders were made in 2007, that the father has a problem with alcohol and that this impacts on his care of the children.  She certainly believes that the extensive time that the father is able to spend with the children, pursuant to the current orders, is not spent as productively and as enjoyably and in as child-focused a way as it should be.  She says that both the children, but particularly J, want to see more of their father.  They want to see him more often, but they do not want to be flipped between his place of work at the children’s centre and the hotel. 

11. The mother's affidavit then recites a number of things which she says are indicative of possible mental illness or instability on behalf of the father.  She refers to an entrenched and unpredictable pattern of alcohol abuse and dependency as possibly masking undiagnosed mental illness.  The mother has told me from the bar table that she has completed part of a teaching degree.  As best I understand it, she has no medical or psychiatric qualifications. 

12. Counsel for the father cites the E Hotel as being child-friendly.  There can be different perceptions of the one establishment.  The mother says that the children simply do not want to stay at the hotel with the father.  They do not consider it to be an enjoyable place.  They only occasionally see children they know.

13. It is abundantly clear that the mother and father have very different households and the current order require the children to live between two very different environments. 

14. I have heard submissions from both of the parties.  I have not heard oral evidence from either of them and, as indicated,  their affidavit material has not been tested by cross examination 

15. I will make orders today which will operate between now and 27 February 2009.  I follow the path of the legislative framework laid down in Goode's case.  I have regard to the need to protect the children from harm and abuse.  I also make an assessment on an ongoing basis of the benefit that the children have in spending time with both parents.

16. I am satisfied that no matter whose version of the events on 19 January is most correct, the appropriate response since then has not been that the children not see their father at all.  It is a great pity that has been what transpired.  It is obvious from the mother's application that she envisages the father seeing the children for some time.

17. In discussion with counsel for the father I made the observation that these proceedings are instituted by the mother, rather than the father, in circumstances where one may reasonably expect that the father would be approaching the court as quickly as possible to reinstate/secure the time to which he and the children are entitled.  Furthermore, that having been served two weeks ago, the father files his material at such a time that it is unlikely the court can read it and practically guaranteeing an adjournment so that matter can be considered more fully at a later date.  I was informed that the father approached his solicitors promptly but could not do their work for them.  In relation to a lack of assertiveness on the father’s part, I was referred to the family report prepared by Ms S in proceedings in 2006 (which culminated in the current orders).  In particular, to paragraph 15 which reads as follows:-

    [The father] presented as a friendly and co-operative person.  While [the father] believes that he is able to offer [J] and [A] many benefits as a parent, particularly in a shared cared arrangement, he does not believe realistically this could work.  It does seem that [the father] has always been involved in the children’s lives and when [the mother] moved back to Melbourne in 2003 [the father] put things in order in Queensland and then moved back to Melbourne so that he could continue to be close to [J] and [A].  [The father] has now moved to [E] so that he can continue to be close to [J] and [A] and participate as fully as he can in their lives.  [The father] would like to be a great deal more involved in their lives.  It is my view that while [the father] has shown a quiet determination to remain close t [J] and [A] and he would be more likely to pull back from an argument with [the mother] for the sake of peace.

18. Of course, Ms S’s evidence is also untested before me. I accept the mother’s submission that the report was merely one piece of evidence in the background to the compromise which the parties reached when they resolved the proceedings, by consent, in the terms of the current orders.  

19. Unlike the father, the mother’s presentation is court is unfiltered by legal representation.  She has a forceful personality and she is convinced of the correctness of her position.  She is disregarding of the father’s contentions.  The 2006 family report, untested and outdated as it might be, offers some helpful insights which I put into the mix of allegations.

20. I have quite a lot of evidence on affidavit, it is detailed but it is conflicting and I have no means to test it.  That includes the evidence of the parties and the mother’s husband and the bar manager from the E Hotel.  The mother’s version may be correct.  Alternatively, it may be that what the father says is entirely correct and their mother has overreacted or fabricated matters out of malice or as a consequence of unchecked maternal anxiety.  I do not know.

21. I propose to act conservatively but not as conservatively as the mother seeks that I do.

22. I will make orders consistent with what is in the best interests of the children, having regard not only to the primary considerations but to the additional considerations under the legislation.  I wish to reintroduce some normality into the children's lives within the parameters of keeping them safe and acting as conservatively as the circumstances require.  However, that normality requires them to see the father without further delay.

23. Having heard the submissions, having read such of the material as I could, I am of the view that the father should be seeing the children and seeing them extensively.  The overnight periods should be limited at this point for the next two weeks but they will not be non‑existent.  I will follow to the extent that I can something like the framework that was ordered back in 2007; that is because the children are somewhat familiar with it.

24. As indicated, when the matter returns to Court on 27 February 2009, that should be with the Court having the benefit of input an independent children’s lawyer and a Child and Parent Issues Assessment.  The Assessment is not a family report but, for ease of reference, it will be reduced to writing. Mr N should be available for cross examination.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  24 February 2009