Picken and Picken (No. 3)

[2008] FamCA 765

FAMILY COURT OF AUSTRALIA

PICKEN & PICKEN (NO. 3) [2008] FamCA 765

FAMILY LAW – CHILDREN – Interim children’s orders – Real concern for children – Parents in conflict – s 60CC – s 65L

Family Law Act 1975 (Cth)

APPLICANT: MS PICKEN

RESPONDENT: MR PICKEN

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 502 of 2008

DATE DELIVERED: 20 JUNE 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 20 JUNE 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 JENKINS

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

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER BY CONSENT:

1. THAT all previous parenting orders be discharged.

2. THAT until further order the child R born … June 1995 live with the wife.

3. THAT until further order the child J born … May 1997 live with the husband.

4. THAT the husband and wife have the shared joint parental responsibility for both children.

5. THAT R spend time with the husband as agreed between all parties.

6. THAT J spend time with the wife as agreed between all parties.

7. THAT for the purposes of any time that the children are to spend with the other parent then the changeover occur at a nominated date and time at the Ballarat Railway Station, or as otherwise previously agreed between the parents and for the purposes of any such changeover both parents must deliver the child or children then in their care to that Ballarat Railway Station.

8. THAT the husband and wife keep each other informed at all times of their current residential address, telephone numbers and e-mail address.

9. THAT both parents ensure that each of the children in their respective care from time to time are to punctually attend all medical, health and related welfare appointments.

10. THAT the husband and wife are to sign an authority, as prepared by the Independent Children’s Lawyer authorising and permitting an exchange of all medical, health and related information between medical practitioners and health experts of and concerning both R and J.

11. THAT the parents are to keep each other advised of any health or medical emergency issue or hospitalisation involving either of the children.

IT IS FURTHER ORDERED:

1. THAT pursuant to s65L of the Family Law Act 1975 compliance with these orders be supervised on a reportable basis by a Family Consultant, Mr S or other Family Consultant nominated by the Director of the Child Dispute Services of the Court and such consultant is to report back to the Court from time to time at their discretion or if and when any matters of urgency may arise.

2. THAT the Independent Children’s Lawyer is to forthwith investigate and organise, as far as may be practicable, any available health and community support or assistance for the wife and R as may be necessary and available and, again in so far as it is practicable to maintain a level of contact with the wife by way of overseeing the current health, education and other circumstances of R.

3. Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

4. THAT all extant children and parenting matters are otherwise adjourned for case management and mention before Young J at 10.00 a.m. on Tuesday 9 September 2008.

5. THAT for the purposes of the forthcoming June/July school holiday period both children are to reside with the wife for the first week of the holiday and the period inclusive 28 June – 5 July 2008 and otherwise are to reside with the husband for the second week of the school holidays and for the period 5 July – 12 July 2008 and the husband is to punctually facilitate the transport of R to the Ballarat Railway Station on Saturday 12 July 2008 for his return to the wife.

6. THAT the husband forthwith deliver to the Independent Children’s Lawyer the expired Australian passport of both R and J and each of those documents then be forthwith lodged for safe custody with the Registrar, Family Court, Melbourne Registry.

7. THAT both the husband and wife be and are hereby restrained from applying for any Australian passport, or the passport of any other nationality, in the names of the children R or J and further each of them be restrained from removing or causing the removal from the Commonwealth of Australia of either or both of the children.

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

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 502 of 2008

MS PICKEN

Applicant

And

MR PICKEN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Picken and the Independent Children's Lawyer was listed before me for further mention this day.  Both the husband and wife now appear for themselves.  Ms Jenkins appeared as the solicitor from Victoria Legal Aid appointed as the independent children's lawyer.

2. The wife had the benefit of an interpreter in the Mandarin language and that gentleman, Mr …, was sworn in as an interpreter and has sat alongside the wife and I am satisfied has well and truly interpreted all issues to her this day.

3. This matter does have both a lengthy and a significantly disruptive and somewhat tragic background.  I have a general knowledge in view of previous orders arising from my involvement in the case and my various extempore judgments, and of course a reading of the affidavit material of the parties and the various professionals previously filed.

4. By way of background, the section 79 property and financial orders in this case are final.  There were consent orders made on 20 February 2008.  At that time the wife's interests were represented by her Trustee in bankruptcy.  Without appearing here this day, the Trustee was represented in the body of the court by Mr D, the manager of the wife's estate, conducted by and on her behalf by W Accountants, solvency and forensic accountants.

5. An order has been made for the sale of E property, and the details of that order are contained in paragraphs 2, 3, 4 and 5 of those previous consent orders.  I have carefully explained to the wife that the jurisdiction of this court, at first instance, is concluded on the making of those orders and the expiration of any period of appeal therefrom.

6. The home has not yet been sold but arrangements are in train for that process to be undertaken.  The wife has the right to occupy the property pending settlement of its sale.  I have merely commented to the wife that she should be, to the extent that financially she is able so to do, talking to the husband and the Trustee about any available option.  I make no order and give no advice in that regard.

7. Turning to the children's issues, there has been a significant turnaround in the domestic arrangements of the children.  R now lives with the wife.  J continues to live with the husband.  I have been advised that there was a family discussion between the husband and wife and each of the children, and approximately three weeks ago a changeover was effected whereby R returned to live in the former home in E with the wife.  Ostensibly that was for the reason of his urgent medical care and in particular of his need to eat to regain weight and to regain a reasonable state of health.

8. Over a lengthy period R has had constant medical attention and review from CAMHS; from a consultant paediatrician, Dr H; from a GP, Dr L; and now the court is informed by the father from also Dr C and Dr T.  I have heard little today of J but understand he remains living in suburb A with his father.

9. I have throughout this case, and on prior occasions when the matter was before me, echoed a very real concern about the relationship between parents, the level of conflict and likely emotional or verbal abuse or influence. Again I repeat that the health and welfare of these boys, particularly R, remains in crisis. I will make orders today charging the Independent Children's Lawyer with the obligation of closely monitoring this case. There is at the moment a supervision order made pursuant to section 65L of the Family Law Act 1975 and I will extend that supervision by the director of the Child Dispute Services of this court.

10. I have received an exhibit, being a medical certificate handed to the court by the wife, showing that a Dr I, a general practitioner at E, is now overseeing the child R.  I regard it as essential that the past medical history, reports and documents relating to R be available to Dr I and there be a concerted effort to have his history fully known and disclosed.  Again I have requested of the Independent Children's Lawyer that they coordinate that situation, and I will require the parents to sign all appropriate medical authorities today.

11. The draft of orders that I have been presented with are by consent.  The issue in dispute is that there is no agreement as to whether they are to be made as final orders or as interim orders.  They provide for R to live with the wife and J to live with the husband; for there to be a shared joint parental responsibility for the children; and for each child to spend time with the other parent as may be agreed.

12. In discussions with the parties there is an argument for the forthcoming June/July school holidays to be shared and I will specifically include in the orders that both children are to be with the wife for the first week of the holidays and with the husband for the second week of the holidays, and thereafter R is to return to his mother and J to remain with his father.  What happens thereafter is really for the parents to determine, together with the children and with the assistance of such experts as may be available.

13. At some point in time there must be stability in the lives of these children.  The current circumstances are highly troublesome. R is clearly in crisis. I have made a number of observations during the brief hearing this morning and I will have transcribed and placed on the court file the various discussions that I had with the parties and with the independent children's lawyer.  I do so for completeness.

14. In this case I emphasise that I identify a very real and particular concern for R, and the parents have an absolute primary responsibility to limit conflict and to promote meaningful actions to assist R, for him to settle down, to commence eating, to return to school and to return to some measure of normality.

15. The husband seeks orders only to be made on an interim basis for the children.  He highlights that the current orders are temporary and that he is expecting R to likely return to live with him.  There is a point where finality is required but in view of the current emotional position of the wife, the tragic circumstances of R, the uncertainty of accommodation, a lack of income, the fact that R is not yet at school and that his weight and health are issues of grave concern, I do not regard any order that I could make today as final as being in the best interests of the children.

16. At the outset the Independent Children's Lawyer indicated her instructions from her principal, and her own view was that the orders should be made final.  Having heard the matters discussed in court today, that position has been reversed and the Independent Children's Lawyer now recommends to the court that the orders be of an interim nature.  I propose to make orders until 9 September 2008.  I propose to list the matter, for mention and case management only, before me on that morning.

17. I will endeavour to provide orders whereby there is a level of medication supervision or other services and support provided by the independent children's lawyer or such agency as they may recommend.  I well understand that travel and distance is a problem in this case, given that the husband and J live in A in regional Victoria and the wife and R in E, a suburb of Melbourne.  There is limited money, there is some level of language difficulty, and there is a significant separation in emotion and ideological beverages.  All of those matters add to the complexity in this case.

18. Significantly, I act in what I regard to be the best interests of both children.  In that regard I of course am acutely aware of the provisions of the Family Law Act 1975 and in particular the paramount and additional considerations within section 60CC. I have specific regard to those relevant issues. I have given a level of consideration as to whether there should be another family report prepared but I am mindful of all of the relevant facts and issues in this case and will rely upon a supervision order, given the appointment and the considerable experience of the independent children's lawyer.

19. For those brief reasons, which I will have transcribed, and I will also have transcribed otherwise the proceedings this morning and those documents will be on file and made available to the parties and more importantly perhaps the independent children's lawyer, I will make the following interim orders.

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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Associate: