Perinkov and Tannin

[2007] FamCA 1614

FAMILY COURT OF AUSTRALIA

PERINKOV & TANNIN [2007] FamCA 1614

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Interim Orders – Family Report

Family Law Act 1975 (Cth)

APPLICANT: Mr Perinkov

RESPONDENT: Ms Tannin

INDEPENDENT CHILDREN’S LAWYER: Ms Forster

FILE NUMBER: MLC 13074 of 2007

DATE DELIVERED: 20 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 20 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms K. MacMillan

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ms Forster

Orders

1. That until further Order, the child of the marriage … born … October 1999 ("the child") live with the applicant father as follows:

(a)     from after school on Friday 21 December 2007 until 5.00pm on Saturday 22 December 2007;

(b)    from 5.00pm on Friday 28 December 2007 until 5.00pm on Friday 4 January 2008 and each alternate week thereafter;

(c)    as may be otherwise agreed.

1. That until further Order the child live with the respondent wife at all other times.

1. That until further Order the child attend S Primary School.

1. That the applicant husband, the respondent wife and the child attend upon Ms M on 23 January 2008 for the purposes of the preparation of a Family Report. The applicant husband and the respondent wife shall share equally the cost of the report.

1. That all extant applications be adjourned for further hearing in the Registrars Duty List on 15 February 2008 at 9.45am.

1. 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 the parties adjust to and comply with an order are set out in Annexure A and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13074 of 2007

MR PERINKOV

Applicant

And

MS TANNIN  

Respondent

REASONS FOR JUDGMENT

1. This interim hearing has arisen today in the Judicial Duty List.  It relates to an 8-year-old child, whose parents separated recently.  I am being asked to deal with the very short period between today and mid-February 2008, when the family will come back to court with the benefit of a Family Report prepared by Ms M. 

2. There has been one previous appearance in this matter, on 12 December, when Mushin J ordered that an Independent Children's Lawyer be appointed, that there be a s 91B notification to the Department of Human Services, and that the child, who had moved out of the former matrimonial home with her mother, was to spend some specified times with her father.

3. Fortunately, the ICL has now been brought into the matter.  I am grateful for the work that Ms Forster has done in a very short space of time.  She has been able to interview the child, and to make inquiries from the assistant principal at the child's school, a person who knew the child well and was able to offer helpful information.  Ms Forster was also able to arrange the Family Report.  Unfortunately, the Department of Human Services only recently received their notification and so are not able to be here today, but hopefully they will be able to assist further by the next hearing in mid-February 2008. 

4. Following her inquiries and her discussion with the child, Ms Forster has proposed today that for the weeks between now and the return to court - primarily school holiday weeks - that the child should live weekabout with each parent, subject to a slight adjustment in the first week. 

5. Despite the concerns raised by the father about the mother's history of mental health, with the assistance of legal representation he has decided to accept the ICL’s proposal. 

6. The child's mother, has appeared today without legal representation.  She has not yet had the benefit of legal representation and I urge her to correct that as soon as possible.  She seems well on the way to getting that arrangement properly in hand, having got ready to make contact with Victoria Legal Aid's office.

7. Her position today is that she is concerned first of all that the father has raised the issue about her mental health.  She says that she was diagnosed as suffering a psychotic episode in April 2005, when on the husband's case, she was admitted as an involuntary patient at the Alfred Hospital.  There is some uncertainty surrounding her diagnosis at that time and it might be appropriate for me to grant a subpoena today to the ICL to obtain material from the Alfred Hospital.  That is likely to be important to the report writer as well. The mother has given me a letter today from a Dr W who saw her briefly yesterday.  The doctor said she appears to have no evidence of psychiatric disorder at present, but he made it clear he would need to do further assessment if a report was required. 

8. The mother has also expressed her concern that the father was fighting with her in front of the child when they were living together under the one roof before their physical separation on 23 November this year. 

9. The matter she raises and the matter the father raises are all important matters to be considered by the court in due course.  The mother's position though that in the meantime the child should stay only in her home and sleep in the one place every night really cannot be sustained.  This is a brief arrangement for a holiday period for a child who has expressed to the ICL her comfort at the arrangement proposed.  It also has the benefit in my mind of ensuring that each parent can be observing the child regularly to ensure that there are no concerns with her progress. 

10. By the time Ms M sees them, and after they have the benefit of her expertise, it might be that together they can work out the best way forward for the child.  That is the best possible outcome for her.  She is in the middle of her parents’ recent separation and might simply want to get on with just being a little kid and enjoying both her parents.  Hopefully, Ms M can unravel all that. 

11. The parents are living close by, so even when school starts, the child will be able to move between the two households.  An order has also been sought that her school not be changed and that is reasonable in the short term.  There was apparently some reference in the material to that as a prospect and Ms Forster has ascertained that she is being well cared for in her current school. She is participating in a particular language program and until there can be further investigation she should remain at that school.

12. I am going to make the orders as proposed by the ICL.  They strike me in the child's best interests in this short time of uncertainty.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date: 20 December 2007