Picken and Picken (No. 2)

[2008] FamCA 133

FAMILY COURT OF AUSTRALIA

PICKEN & PICKEN (NO. 2) [2008] FamCA 133

FAMILY LAW – CHILDREN – Parenting issues

Family Law Act 1975 (Cth)

APPLICANT: MRS PICKEN

RESPONDENT: MR PICKEN

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 503 of 2005

DATE DELIVERED: 20 FEBRUARY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 20 FEBRUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS McNAMEE

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: VICTORIA LEGAL AID

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER:

1. THAT the wife’s application in A Case Form 2 filed 13 February 2008 be dismissed.

2. THAT all extant children’s applications be adjourned for Case Management purposes on 20 June 2008 at 10.00 a.m. before Young J.

3. THAT the wife requires a Mandarin speaking interpreter on the adjourned date.

4. THAT the husband do all such acts and things forthwith to ensure that the child R born … June 1995 is referred to the Child and Adolescent Mental Health Services (“CAMHS”) at … for assessment and ongoing treatment (if any) as recommended by CAMHS.

5. THAT the husband do all such acts and things forthwith to ensure that R attends upon Consultant Paediatrician Dr. H as and when recommended by Dr. H and/or by R’s general practitioner Dr. L.

6. THAT the husband do all such acts and things forthwith to ensure that R and J born in May 1997 attend upon general practitioner Dr. L for assessment and any or all referrals to other medical practitioners with the husband to ensure any and all referrals are carried out at the earliest opportunity and the husband to strictly follow all such recommendations and directions made by all medical practitioners involved in the medical care of R and J.

7. THAT the husband ensure that any and all appointments with medical practitioners, medical professionals, hospitals or CAHMS are made at times other than when R and J are to spend time with the wife.

8. THAT the Independent Children’s Lawyer forthwith cause a sealed copy of this order and the order made on 30 November 2007, to be forwarded to each of the children’s medical practitioners and medical health professionals and CAHMS.

9. THAT in the event either child is hospitalised for any reason, either child not be removed from such hospital facility by the husband, wife or their agents, until formal discharge by the relevant medical practitioner.

10. THAT the husband ensure that all medical and the like appointments made in relation to the children or either of them are punctually kept.  

11. THAT the Independent Children’s Lawyer provide to the children’s psychologist and/or psychiatrist, Dr. L and Dr H copies of the family report by Mr M dated 28 June 2007 and Psychiatric assessments made in these proceedings in relation to the husband and the wife.

12. THAT pursuant to section 65L of the Family Law Act 1975, compliance with these orders be supervised on a reportable basis by Family Consultant Ms W or other family consultant nominated by the Director of the Child Dispute Services of the Court, and such consultant may report back to the Court from time to time at the direction of the Family Consultant.

13. THAT paragraphs 2, 3(c) (d) (e) (f) (g), 4, 5, 6, 7, 8, 9, 10 and 11 of the orders made 30 November 2007 continue in full force and effect.

14. PURSUANT to S65DA(2) and S62B, 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 the Independent Children’s Lawyer

2. THAT the ex tempore reasons for judgement be transcribed and be sent to the parties and placed upon the Court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 503 of 2005

MRS PICKEN

Applicant

And

MR PICKEN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In the matter of Picken & Picken and the Independent Children's Lawyer, these reasons for judgment deal only with children and parenting issues and the dismissal of the current Form 2 application in a case seeking a recovery order filed 13 February 2008.  The husband and the wife each appear in person.  The wife has had the assistance of a Mandarin speaking interpreter.  Ms McNamee of counsel appears for the Independent Children's Lawyer.  Insofar as that Form 2 application is before the court, I propose that it will be dismissed by order of the court.  I have separately on this day heard the property and financial issues and I will deliver a separate extempore judgment on those matters with which the Independent Children’s Lawyer has no involvement.

2. This matter has a long and sorry background.  I have made previous orders and delivered extempore reasons on other occasions.  The current order is for the two children, J and R, to live with the husband and spend time with the mother.  I propose to largely continue the substantive paragraphs of that order of 30 November 2007 and in particular the mother's time as provided for in paragraph 3 thereof.  The matter was before the court today for further mention as those prior orders were interim orders. 

3. The orders that I will make today are again interim orders and this matter unfortunately must remain under the close monitor of the Independent Children's Lawyer and now a family consultant of this court until the adjourned hearing date on 20 June 2008 at 10.00 a.m. before me.  I gave leave for the further affidavit of the Independent Children's Lawyer to be filed this day.  I have carefully read that document.  There are annexed thereto various medical and psychological reports of and related to the children and documents detailing their attendance at A Primary School.  In particular I make reference to the very concerning reports and observations of Dr H and also Dr K. 

4. Both of these children have a very traumatic and unsettled life.  Unfortunately they have parents who are in a state of open hostility to each other.  I do not propose to traverse the long and tragic history of this case and the traumatic and deteriorating effect it has had on both boys.  I do not revisit the scenario that they now live in A.  It is a matter of utmost importance that they continue to spend time with the mother, though that is becoming more and more difficult.  Indeed I record that only recently I received, and I will place in an envelope inside the file, letters from both boys dated 28 January 2008, carefully typed and directed to me to further amend or decrease the time that they have with their mother.

5. The father assured me that the boys are the authors of these letters, though I harbour the gravest concerns in that regard.  I do not make a necessary and particular finding.  I have made orders today to endeavour to further involve the medical practitioners to make it compulsory upon the father to ensure both boys have proper treatment and counselling and access to medical services, and I have charged the Independent Children's Lawyer and the Family Court, through its consultant as appointed under section 65 of the Act, with a reasonable and proper level of supervision.

6. I do understand that primary responsibility is with the father, but there is and remains a significant level of concern as to his potential destructive approach to the boys.  I well understand the father would say to the contrary, but everything I have seen in this case, and certainly in this court today highlights the ill will between parents, perhaps generated more so by one than the other.  I have separately made final property orders today.  They were made by consent.  Hopefully that takes some tension out of this case.  The personal asssets and possessions and chattels of the parties are to be divided and those orders speak for themselves.

7. I have raised with the parties and indeed in particular by way of comment to the husband, that if the boy's safety and circumstances and welfare are not improved, then perhaps the intervention of State authorities or some form of outside parenting, or in the words of the husband a "foster home", might be better for the boys.  I have an open mind, but the court must be alert to that scenario and I have tried to identify the real concerns today.  I do congratulate the Independent Children's Lawyer on the medical reports brought to the attention of the court, and at least there is a measure of comfort that these children have received and are continuing to receive medical supervision or attention in B, or in the nearby towns or in A where they now reside.

8. The parties no doubt understand that the effect of the supervision order is they can contact and report an issue of real and genuine concern to this court, and I request that to be fully explained to them by the Independent Children's Lawyer, perhaps in a letter, who is free to liaise with the director of the court dispute services.  I have appointed Ms W as a person of experience, but if she is unavailable it will be at the direction of the director of the Family Court dispute resolution and counselling services, otherwise this is one particular case which may require the alert and active supervision of the independent children's lawyer and to that extent I record for the purposes of Victoria Legal Aid that such attention to this case is required and should be properly promoted and funded, at least pending my further review of this matter on the adjourned hearing date on 20 June.  I will sign the appropriate referral to the child dispute service.  I will as the matter be taken down.  There will be a Mandarin interpreter required on the adjourned hearing date, and that I would ask to be both confirmed and put into operation. 

9. I do not want to breach any confidences that the children might have in writing to the court, but for all of the various concerns that I might have on the face of the letter, and because the father has copies of the letters, I propose to make available to the Independent Children's Lawyer and to the mother, a copy of both of those letters.  I am not seeking any further action or response thereto, but it is on the basis that everyone can understand what the children have said to the court and the manner and content of the document.

10. Those brief reasons will be transcribed and made available to all parties.

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

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