Picken & Picken

[2007] FamCA 1143

FAMILY COURT OF AUSTRALIA

PICKEN & PICKEN [2007] FamCA 1143

FAMILY LAW – CHILDREN – Interim children’s orders

Family Law Act 1975 (Cth)

APPLICANT: Mrs Picken

RESPONDENT: Mr Picken

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: MLF 503 of 2005

DATE DELIVERED: 18 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 18 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person (assisted by Mandarin Interpreter)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bender

ORDERS

Children and Parenting

1. THAT orders 1 – 7 (inclusive) pronounced by Young J on 5 July 2007 be discharged.

2. THAT leave be granted to the Independent Children’s Lawyer to renew their oral application seeking interim children and parenting orders in accordance with the minutes of orders tendered to the Court on 29 August 2007, and retained upon the Court file.

3. THAT until further order the husband have the parental responsibility for the care and upbringing of the children R born … June 1995 and J born … May 1997 (“the children”).

4. THAT until further order the children live with the husband.

5. THAT the children spend time with the wife, until further order, for a period of four (4) hours on the last Sunday in each of the months of September, October and November and for the purposes of such order:

   §the husband deliver the children punctually to the front gate of the wife’s residence at E at 12.00 noon and collect them at 4.00 p.m. on each of those three days;

   §the husband be responsible for the petrol and cost of travel on those three occasions only to and from the wife’s home;

   §the husband not be present with the children and wife for any part of those four hours and a positive obligation be imposed upon him to encourage and promote a meaningful relationship for that time spent with period.

6. THAT the children communicate with their mother by telephone (landline if appropriate) on two (2) occasions each week for a period of, and preferably no less than, thirty (30) minutes on each occasion and otherwise by e-mail, letter and other electronic means as are available.

7. THAT the changeover in parental care of the children occur today at 3.00 p.m. with the husband to collect the children from the front gate of their current home together with a suitcase packed with their clothes and such other toys or possessions as can be appropriately transported by him to the house at A (and to include a computer, printer and required accessories for the use of the boys).

8. THAT the husband forthwith enrol the children at the A School and assure their immediate and ongoing attendance at all classes.

9. THAT it is requested that the school, or such other health services as are available provide such a level of counselling and assistance to each of the children as may be required and that any report prepared on the children be authorised by the parents to be available to the Court at the adjourned hearing date of 30 November 2007, and with a copy to be made available to the Independent Children’s Lawyer.

10. THAT it is directed that the Independent Children’s Lawyer make available to the A School and such other health professionals or counsellors who may be involved with or assisting the children or the family a copy of the Family Report of Dr M dated 28 June 2007 together with copies of the reports of Connections and the most recent affidavits of the husband and wife and the Independent Children’s Lawyer (all filed on 13 or 14 September 2007) and a copy of the extempore reasons for judgment delivered this day.

11. THAT until further order the husband be and is hereby restrained from:

    (a)denigrating, abusing or criticising the wife in the presence of or within the hearing of the children or their friends and associates; and

    (b)from in any way assaulting, harassing, threatening or otherwise interfering with the wife or attending at or entering upon the premises of the E property, save as provided for in these Orders.

12. THAT the husband specifically authorise and empower the A School and any other health professionals, counsellors or persons working with or assisting the children to provide to the wife and to the Independent Children’s Lawyer current update information relevant to their wellbeing, progress, health and development and specifically to include information as to their attendance at school, progress and school reports and other like information.

13. THAT an appropriate authority, handwritten, be immediately drawn up by the Independent Children’s Lawyer and be signed by both parents forthwith and to authorise and empower the actions identified in the previous order.

14. THAT until the further hearing date the children or either of them are not to be removed from the State of Victoria by their parents or any other person.

15. THAT until the further hearing date the children are to live at B Street in A with their paternal grandparents and father.

PROPERTY AND FINANCIAL ORDERS

1. THAT the parties are directed to attend a financial conciliation conference fixed for 13 November 2007 at 11.00 a.m.

2. THAT on before Wednesday 31 October 2007 the husband and wife are each to make, file and serve:

   §an updated Form 13 financial statement;

   §an updated trial affidavit as to issues of property, contribution, financial, valuation and s.75(2) factors;

   §any other affidavit by a witness upon whom they intend to rely as to relevant property or financial issues.

3. THAT the parties are to agree upon and engage a single expert valuer to have filed before the Court a current market valuation of the real properties at:

   §The E Property; and

   §The A Street Property

4. THAT paragraphs 10, 11, 13 and 14 of the Orders pronounced 5 July 2007 continue in full force and effect.

5. THAT until further order the wife have the sole use, enjoyment and occupation of the E property, she to pay proper outgoings of and associated with her occupancy thereof.

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

7. THAT liberty be reserved on all issues to the Independent Children’s Lawyer to apply on short notice for any variation of these Orders.

8. THAT otherwise all extant applications be adjourned and consolidated for mention on 30 November 2007 at 10.00 a.m.

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.

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. The matter of Picken & Picken and the Independent Children's Lawyer is listed for mention, and if appropriate a further interim hearing before me this day.  Each of the husband and wife appear in person, Ms Bender of counsel appears for the independent children's lawyer representing the children R, born in June 1995, and J born in May 1997.  The matter was previously before me in a defended list and I made orders on 5 July 2007 both as to children and parenting issues, and also as to the preparation of the case for property and financial matters.

2. The current order arising from that day is that all extant applications both interim and final are adjourned as a one day hearing and case management mention before me on 30 November 2007 at 10 am.  I propose to retain that date before me but I emphasise to the parties and to any other Registrar or Court Officer before whom this matter is listed in the interim, that that date is not a final defended hearing date.  There are specific orders that I will make today as to the children and as to the further preparation of the property hearing, including the appointment of a financial conciliation conference to occur at 11 am on 13 November 2007, and which I direct the parties to attend.  What I envisage on 30 November is an examination of whether the property aspects of this case are fully detailed and properly before the court, whether there is a explanation of past financial transactions, including section 79(4) contributions and section 75(2) factors, and if the matter is then ready to be set for a hearing on financial and property issues.

3. Given the level of preparation and the argument between parties at the bar table and the purported contributions from extended family, then there is a significant amount of detail and work to be undertaken in the interim, particular given that they are no longer legally represented.  As to children's issues, for reasons that I will shortly identify, I propose to discharge current orders and make further and very different children's orders on an interim basis until 30 November 2007.  I have re-read the extempore reasons for judgment which I delivered on 5 July 2007 and arising out of the hearing of evidence by me prior to that date.  I have had the further opportunity of reading the brief extempore reasons delivered by His Honour Kay J on 29 August 2007, and the orders that he made on that day.

4. Subsequently I confirm that I have received upon the court file and I have read the further affidavit of the wife filed 13 September 2007, the further affidavit of the husband filed the following day 14 September 2007, and the further affidavit and annexures of the Independent Children's Lawyer also filed 14 September 2007.  As to parenting and children's matters, the orders in force are those which I pronounced on 5 July 2007.  Pursuant to these orders each of the children live with the wife.  She has sole parental responsibility for their upbringing, and the husband is to have no time with and no communication with either of those children.  Otherwise there was to be continual assistance and assessment from Connections, child youth and family services of the N area, and otherwise through Eastern Health, H Hospital, CAHMS.

5. My intent in delivering these extempore reasons will be to discharge paragraphs 1-7(inclusive) of those previous orders.  That will include discharge of the earlier order, paragraph 6, made 3 August 2005 by Mushin J.

6. The current situation is that the wife simply is not coping with the care and upbringing of the children.  In that context I have read her recently filed affidavit and, leaving aside property and financial issues it is clear that, as deposed to in paragraph 16 thereof, that the current situation cannot go on.  What the wife wants is for a quick decision to be made so that all parties and in particular the children can get on with their lives.  She indicates in that affidavit that she is respectful of the law and will abide by any decision made today.

7. In paragraph 17 she emphasises her love for the children and that one day they might understand and comprehend what has happened to them over the years.  The overview of her affidavit is that this dispute will never cease for so long as the children live with her, that her husband is either determined or so obsessed to obtain an order for the children to live with him that conflict will be ongoing and there will be no boundaries to the level of this dispute even if the children are wholly destroyed.

8. In her brief submission today and with the assistance of a Mandarin interpreter the wife has reinforced that position, though the evidence was given from the bar table and was not sworn evidence.  I nevertheless have a very clear understanding of the circumstances of the wife and children, and it is abundantly clear that a decision has to be made today by way of a very significant change to the current orders and arrangements.  Just to give one example which I understand is ongoing, but last evening the children were awake watching television or playing on their computer until 3 am, and today instead of being at school (if it not be school holidays) they are sleeping and would likely sleep in until this afternoon.

9. The school records that are now before me simply show that the children do not attend.  It is not as if there is any explanation or illness, they simply do not attend school.  Their attendance record is abysmal and they are significantly and adversely disrupting their education and their future in life.  The husband has filed an affidavit which have I read.  I have already made strong comments about the objectionable material, the content of the affidavit, the personal attack and abuse directed towards the mother and that it is probably one of the more vindictive, manipulative and unhelpful affidavits I have read.  I was moved to have the document removed from the file but I have thought better of that.  It really does highlight to any individual hereafter reading the file the level of dispute, acrimony and conflict that this matter has reached and where the children are simply "caught in the middle".

10. What the husband wants is for the children forthwith, and it would seem this day, to be collected by him to be returned to the home he shares with his parents at B street in A and there to attend the A School.  He gives a guarantee to the court that he will get the children to go to school.  That may well be right, because it may be simply part of the grand master plan enacted over recent months or years.  The “proof of the pudding” will be on 30 November when the matter is before me, and I understand if and with what regularity the children have been at school.  I require the husband to produce to the court on 30 November or otherwise the Independent Children's Lawyer to have available the school attendance records and their reports and assessments and comments from school teachers and counsellors as to the manner in which they have settled into the school and contributed to school life and made an effort to learn for themselves their school work, projects and other requirements.

11. The Independent Children's Lawyer has filed an affidavit which I have read.  When the matter was before Kay J there were then proposed minutes of order that had initially been filed on 5 July 2007, but which had been updated before His Honour and whereby the proposal was for a change of residence and parental responsibility for the children.  The strong recommendation that I have before me today is, in the best interests of the children, to immediately facilitate a change in their home from the E property and their mother, to their father’s home in the A region. In the circumstances of this case it does seem there is no other option.  I propose to pronounce such orders, but on an interim basis, and with the clear intent that they will be carefully monitored by the Independent Children's Lawyer, and/or appropriate counsellors or other agencies as Ms Bourke may require from time to time. 

12. The opportunity of the court to reassess all of the circumstances and the implementation of these orders and any success arising therefrom, will be on 30 November 2007 at the mention of the matter that day.  The logistics of changeover are relatively straightforward.  The wife will need to return to her home forthwith, tell the children, "pack a suitcase, and if possible, pack the computer safely so that it's not damaged in transit," and some other toys of the children.  I would not have any furniture removed from the home, but the children need to be able to take with them what they reasonably need and what can be packed into the husband's car.

13. My preferred position would be that the husband does not enter into the home, that the suitcases and other equipment are carried by the boys to the front gate and packed in the car.  Hopefully there will be no incident and the husband may have some level of understanding of the issues and the turmoil and the upset.  Again, I cannot order and do not have too high an expectation.  What I absolutely want is no conflict at changeover.  It would be ideal if an independent person could supervise this changeover between 3 and 3.30 but whether that is practicable or possible I know not.  If the wife is able to organise to have an adult at the home then that would be reasonable.

14. Thereafter, the children are to live in the home of the paternal grandparents at B Street in A and together with their father.  They are to attend the A School immediately.  They are to have available whatever counselling and other health or supervision services as are available through the school or through the local hospital.  I most certainly expect that at the least once a week, but realistically twice a week they should be able to ring the mother and have a conversation of up to half an hour - certainly no less than 15 minutes each.  I record in these minutes and it will be a matter that I intend to explore on the adjourned hearing date, that there is full cooperation between the mother and the school, that she receives school reports and school information and a reasonable and proper update as to any matters directly affecting the health of the children, emotional or physical.

15. Likewise I intend and I require the father to authorise all such information being made available to the independent children's lawyer, and if they prepare an authority by way of a letter today, I require the father to sign that document before leaving court.  It can be in general terms, but I make absolutely clear that the Independent Children's Lawyer is to know all about these children, their accommodation, their school, their welfare, their upbringing over the next three months and I would formally request that level of cooperation be authorised by the father and provided by the school, the health clinic, the hospital or any other organisation.  If one was to be optimistic, it would be that the children settle into school, go to school, make an effort, enjoy country life, and do not need all of these extended services.  Only time will tell.

16. In the strongest of terms I emphasise that communication with their mother must be maintained.  It must be regular, meaningful and proper.  As to physical contact between the children and their mother, the independent children's lawyer has recommended only four hours on the last Sunday of each month; that is, in the months of September, October and November - specifically 25 November 2007.  For each of those occasions, the father will drive the children to the front gate of the mother's home and will there collect them four hours later.  That is, they are to be dropped off at 12 noon and collected at 4 pm on each of those three Sundays.  In September, being for the purposes of these order, only 30 September, in October being 28 October, and as I said for November being 25 November. 

17. I require the husband to be punctual both at collection and delivery.  I do not accept any excuse that the children do not want to go.  The parties must keep each other advised of residential and mobile telephone numbers, though I envisage any telephone calls should occur on the landline.  Insofar as there were previous restraining and injunctive orders made in paragraph 6 of the orders of Mushin J on 3 August 2005, I will discharge those orders but I will pronounce fresh orders that the husband is not to denigrate or criticise the wife in her presence or in the hearing of the children, and there is required to be a general protective order that I will pronounce somewhat in the same content as Order 6(c) of those previous orders.

18. The property and financial issues before the court are not prepared, and both parties will have to file an affidavit by the end of October setting out all relevant contribution matters, and all section 75(2) factors.  I am advised from the bar table by the husband that this is a complicated property matter because of substantial contributions made by or on behalf of his extended family.  I understand there will be any number of issues of valuing the property, superannuation, past redundancy payments made to the husband or otherwise alleged debts and liabilities owing by or on behalf of the wife and her extended family.  I make no finding on any issues.  All of these matters will have to be before the court in a discrete, civil, polite properly drawn affidavit.  I formally put the parties on notice that if the affidavit is abusive or contains objectionable or inappropriate material, it runs the risk of being removed from the file and that evidence not being read or relied on.

1. I will allocate, as I indicated earlier in these reasons, a Financial Conciliation Conference on 13 November 2007 at 11.00 a.m. in the hope and expectation that this material and a Form 13 financial statement will be filed by the parties and there will be enough evidence including as to valuation, before the court to enable all matters to be resolved.  It is a requirement that there be a single expert, that is one only valuer, valuing each of the two real properties, the A Street property and the E property. That valuation should be current market valuation in both cases.

2. I require the parties to update all of their liabilities including legal fees and debts outstanding so that the court at the financial conciliation conference can have before it a balance sheet of all assets and liabilities as at that date.  I otherwise will not be unrealistically specific or the orders, because one can only hope and trust that these parties will do their best to put a concise and precise accurate financial position before the court. 

3. On children and parenting matters, and returning to the orders I am about to pronounce, it would seem appropriate to acknowledge the work and effort of the independent children's lawyer and also the various agencies that have had some involvement in this case.  I have in mind particularly Connections and Anglicare, but no doubt there are others who have endeavoured to assist these children and all that assistance has been largely unsuccessful and probably, at least from one party, unwanted and neglected.

4. For those very brief extempore reasons and relying on the strong submissions of the independent children's lawyer, and the acknowledgment by the wife to the court that the time has come for a change in orders, and given that the children are substantially disadvantaged, stubborn and non-compliant, then I propose to transfer responsibility until 30 November 2007 to the husband and then to understand what he has achieved for the children hereafter.

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

Associate
Date: 26 September 2007