PRICE & ZELLON AND ORS

[2011] FamCA 279

FAMILY COURT OF AUSTRALIA

PRICE & ZELLON AND ORS [2011] FamCA 279

FAMILY LAW – CHILDREN - Changeover

APPLICANT: Mr Price

1st RESPONDENT: Ms Zellon

2nd RESPONDENT: Ms Lewis

3rd RESPONDENT: Ms Stewart

FILE NUMBER: DGC 640 of 2010

DATE DELIVERED: 16 March 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 16 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Crabtree

SOLICITOR FOR THE APPLICANT: Comito Lawyers

COUNSEL FOR THE 1ST RESPONDENT: Ms Devine

SOLICITOR FOR THE 1ST RESPONDENT: Perry Weston

COUNSEL FOR THE 2ND RESPONDENT: Ms Harrison

SOLICITOR FOR THE 2ND RESPONDENT: Barbayannis Lawyers

COUNSEL FOR THE 3RD RESPONDENT: Ms Elleray

SOLICITOR FOR THE 3RD RESPONDENT: JH Legal

Orders

1. That pursuant to s 68L(2) of the Family Law Act the children S born … August 2004, J born … October 2005, and R born … May 1999 shall be separately represented and that Victoria Legal Aid is requested to arrange such representation.

2. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer shall file a Notice of Address for service.

3. That within 48 hours of notification of such appointment the solicitors for the respective parties shall provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

4. That the father shall attend and follow the reasonable requests of Dr D or such other psychiatrist as appointed by the ICL, to enable the preparation of a further psychiatric report updating Dr D’s previous report dated 26 April 2010 and Dr D shall be at liberty to inspect all subpoenaed material held at this Registry.

5. That the costs of Dr D’s updated psychiatric report shall be paid by the father subject to funding from Victoria Legal Aid.

6. That the legal practitioners for the parties and the ICL  shall be at liberty to inspect and photocopy the medical records of the father provided under subpoena to the Court and shall be at liberty to show those documents and discuss them with their clients, but shall not give them possession of any documents or copy documents.

7. That pursuant to s.62G of the Family Law Act1975, all parties and all children the subject of these proceedings shall attend upon a Family Consultant nominated by the Co-ordinator Child Dispute Services in the Melbourne Registry of the Family Court of Australia, for the purposes of the preparation of a Family Report dealing with the entire family constellation, such report to be released by 1 June 2011.

8. That the Family Consultant shall be provided with the updated psychiatric report from Dr D and be at liberty to inspect all subpoenaed materials provided to this Court to assist in the preparation of the said report.

9. That each of the representatives of each of the parties shall provide upon request copies of all documents filed with the Court in all proceedings to the requesting party.

10. That paragraph 9 of the Consent Orders made by McGuire FM on 29 June 2010 shall be varied so that the changeover takes place by Ms Stewart or her agent delivering R to and collecting R from the paternal grandmother’s home.

11. That these proceedings shall be adjourned to 10.00am on 10 June 2011 for a continuation hearing.

12. That the ICL shall be at liberty to file and serve any subpoenas required by the ICL.

IT IS NOTED

1. That these proceedings are the consolidation of three separate proceedings, involving three children from three separate relationships with the inherent difficulties involving same, together with mental health, alleged drug use, alleged misuse of alcohol issues, and accordingly Victoria Legal Aid is requested to give earnest consideration to providing over the cap funding to all parties, it being anticipated as more cost effective as well as in the children’s interests, for the cases to proceed together rather than separately.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 640 of 2010

Mr Price

Applicant

And

Ms Zellon and Ms Lewis and Ms Stewart

Respondents

REASONS FOR JUDGMENT

1. There is only one very small issue today, given the enormous complexity and vastness of the issues that remain outstanding before me, and that relates to the changeovers in relation to R. 

2. Relevant orders were made on 29 June 2010 by McGuire FM.  They were clear that R was to spend time with his father, supervised by the paternal grandmother, and that the changeover was to take place at a café located in Melbourne Suburb 1.  One way or another, the arrangement developed whereby the father actually collected the child without supervision, contrary to the Court order, and then spent the balance of the time in the paternal grandmother’s presence, in compliance with the orders. 

3. That arrangement, which had been condoned by the mother, changed when Mr Price was hospitalised in January of this year with what appears to have been a serious mental illness, but I have not yet heard all the evidence about it.  I note that he was in hospital for up to several weeks.

4. Since then, rather than stopping the time with the father, the mother has made one alteration.  She has delivered the child to the paternal grandmother’s home – or had her husband do so – and has then had R collected from there. 

5. I need to explain to the parties that making decisions at an interim stage is very difficult because I do not have all the information at my fingertips.  I have to do the best I can to balance things, in terms of protecting the child, but also trying to protect relationships.

6. I propose leaving the arrangement as it is at the moment.  The important thing is that the child is still spending the time with his father and I think that does show a degree of sincerity and goodwill on her part, given how naturally concerned she must have been about the hospitalisation, and until there is proper medical evidence that is going to continue as an understandable concern to her.

7. The mother has told a version of what the child has told her which, if it is what he said, would have been naturally extremely distressing.  Again that is something that can be investigated, but on face value of it at the moment, I can conclude that it is going to be better for R to maintain his relationship with his father, but for his mother to be relaxed about the driving situation.  If she is anxious and worried, then it is likely to impact on the child and on his relationship with his father.  She and her family are being put out by the arrangement but are prepared to continue it for now. 

8. The father is not actually losing time as such with the child.  Any “one on one” time that he is losing, he should not have been having under these orders, and given the intervening events since these orders were made, I think it is an appropriate short-term variation.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 16 March 2011.

Associate: 

Date:  16 March 2011