Pullman and Garafolo (No 2)

[2019] FamCA 643

FAMILY COURT OF AUSTRALIA

PULLMAN & GARAFOLO (NO. 2) [2019] FamCA 643

FAMILY LAW – CHILDREN – where the child will continue to live with the mother and spend time with the father – where the parties are largely in agreement as to interim orders pending final determination– where the parties are unable to agree on when the child will start spending overnight time with the father – where it is in the best interests of the child that overnight time with the father commence forthwith – where the father proposed orders enabling him to commence spending time with the child on a week-about basis – where the father’s proposal for week-about time was supported by the Independent Children’s Lawyer and opposed by the mother – where a week-about proposal of this kind is not unusual and is appropriate and in the best interests of the child – where the parties cannot agree on the appropriate method of communication – where the mother proposes communication through email or telephone – where the father proposes SMS and this is supported by the Independent Children’s Lawyer – where the evidence indicates that SMS is the most appropriate way of communicating issues involving the child.

Family Law Act 1975 (Cth)
APPLICANT:	Mr Pullman

RESPONDENT: Ms Garafolo

FILE NUMBER: (P)MLC 6923 of 2017

DATE DELIVERED: 5 September 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 5 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hannan

SOLICITOR FOR THE APPLICANT: Rush & Hampshire

COUNSEL FOR THE RESPONDENT: Mr Byrne

SOLICITOR FOR THE RESPONDENT: MMH Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O’Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

Orders

IT IS ORDERED BY CONSENT THAT:

1. All previous interim orders are hereby discharged.

2. The Mother shall forthwith make contact with Dr C, Psychiatrist, and follow all directions of Dr C to arrange an expeditious referral to a psychiatrist (“the treating psychiatrist”) nominated by Dr C for the purposes of undergoing treatment to address her psychiatric issues as diagnosed by Dr C in his report attached to his Affidavit sworn 12 December 2017 and filed herein.

3. The Mother shall attend all appointments as directed and follow all other directions of the treating psychiatrist in relation her treatment including but not limited to the taking of medication.

4. The Mother shall be responsible for all payments due to Dr C or the treating psychiatrist pursuant to these orders.

5. The Mother shall forthwith advise the Father and the Independent Children’s Lawyer of the name and contact details of the treating psychiatrist once she has received a nomination and a referral.

6. All parties shall be at liberty to provide to the treating psychiatrist, the Department of Health and Human Services and SOCIT copies of the Affidavit of Dr C sworn 12 December 2017 and the reports of the family consultant Mr H dated 10 April 2018 and 12 August 2019, along with any judgments and orders made herein.

7. The Mother shall provide her referring general medical practitioner with copies of the documents referred to in paragraph 6 hereof.

8. The Mother shall authorise the Independent Children’s Lawyer to liaise with and receive feedback from the treating psychiatrist from time to time in relation to the Mother’s attendance for appointments and compliance with treatment.

9. The proceedings be adjourned to 2 December 2019 at 10:00am for mention before the Honourable Justice McEvoy and for this purpose the Mother is to obtain a report from her treating psychiatrist (if any) as to the progress of her treatment and her attendance as directed.

10. Until further order, the child X born … 2014 live with the Mother.

11. X spend time with the Father as follows:

    (a)       commencing 5 October 2019:

    (i)each Wednesday from 4:30pm until 7:30pm;

    (ii)each alternate weekend from 4:30pm Friday until 5:00pm Sunday;

    (b)       commencing 2 November 2019:

    (i)each Wednesday from 4:30pm until 7:30pm;

    (ii)each alternate weekend from 4:30pm Friday until 8:15am Monday;

    (c)commencing 30 November 2019, each alternate weekend from 4:30pm Friday until 8:15am Tuesday;

    (d)       from 4:30pm Friday 28 December until 5:00pm 1 January 2020.

12. X spend further time with the Father from 5:00pm Christmas Eve until 3:00pm Christmas Day.

13. Changeover shall occur at D Centre on days X attends childcare and otherwise at KFC Suburb E, Victoria.

1. The Mother shall forthwith facilitate the Father gaining access to the D Centre Mobile App.

2. The Father be permitted to attend D Centre to discuss issues relating to X with the staff and to attend all events at D Centre that parents are normally invited to attend.

3. The Mother be restrained by injunction from taking X to any Counsellor, Psychologist or other such medical professional for the purpose of Counselling without the written consent of the Father.

IT IS ORDERED:

1. X spend time with the Father commencing 7 September 2019 as follows:

   (a)Each Wednesday from 4:30pm until 7:30pm (save that on 2 October 2019 time shall be extended and conclude at 8.15am Thursday to enable X to participate in a cultural event) with changeover to occur at KFC Suburb F, Victoria;

   (b)Each week from 10:00am Saturday until 10:00am Sunday (for a period of 2 weeks) and thereafter concluding 5:00pm Sunday.

2. X spend further time with the Father on a week about basis in January 2020 being from 10:00am 8 January 2020 until 10:00am 15 January 2020 and from 10:00am 22 January 2020 until the commencement of school on or about 29 January 2020.

3. The parties shall communicate in relation to issues involving X by SMS message, including providing details of X’s routine, medical issues and diet.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pullman & Garafolo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: (P)MLC 6923  of 2017

MR PULLMAN

Applicant

And

MS GARAFOLO

Respondent

REASONS FOR JUDGMENT

1. I will make the orders as proposed by the father as amended which are by consent, and the orders proposed by the Independent Children’s Lawyer to which all parties consent. Insofar as these interim orders pending judgment are concerned, the parties are broadly in agreement with the orders proposed by the father, save for three matters.  I deal here with these matters. The first – and, one might say, the most significant – concerns when the overnight time should commence.  The mother’s position is that it should not commence this weekend but that it should commence the following weekend. The Independent Children’s Lawyer supports the father’s proposal that it commence this weekend. 

2. I accept the submissions of counsel for the father that there is no logic in waiting another week for overnight time to commence.  I accept that it has been too long that the child has been denied overnight time with her father, and, in all the circumstances, I am of the view that it is in the best interests of the child that overnight time commence forthwith. Accordingly, I will make the order that is proposed by the father in paragraph 2 of his draft minute.

3. The father also proposes, in paragraph 3 of his draft minute, that time during January of 2020 be on a week-about basis.  The mother says that this is premature.  The Independent Children’s Lawyer supports the father’s proposal in this regard.  I consider that a week and week-about proposal of the kind which is made is not unusual and, indeed, is appropriate and in the best interests of the child in all the circumstances. I would make order 3 in the terms proposed by the father.

4. Finally, the father proposes that communications between the parties in relation to issues concerning the child be by way of SMS.  The mother, by contrast, proposes email or telephone. 

5. The Independent Children’s Lawyer supports the father’s proposed order in this respect, and both the ICL and counsel for the father note that the mother’s evidence is that she is not able to obtain her emails on her telephone, and they point also to the existence of intervention orders.  Both of those matters, in my view, tend to suggest that the appropriate way for communication in relation to issues involving the child should be by way of SMS. I will make order 5 in the terms proposed by the father.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 5 September 2019.

Associate: 

Date:  12 September 2019