Rigby and Rigby

[2007] FamCA 1375

FAMILY COURT OF AUSTRALIA

RIGBY & RIGBY [2007] FamCA 1375

FAMILY LAW – CHILDREN – On dismissing a contravention application various interim parenting orders were made to reintroduce young children to their father after a considerable absence – Orders for time to be spent supervised by the paternal grandfather – Rules of Court suspended for time being so that matter proceeds without formal applications – Child responsive counselling – Costs

Family Law Act 1975 (Cth)

Goode & Goode (2007) 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346

APPLICANT: Mr Rigby

RESPONDENT: Ms Rigby

FILE NUMBER: MLC 11352 of 2007

DATE DELIVERED: 31 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 31 October 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: In Person

Orders

1. That the father’s contravention application filed on 15 October 2007 be dismissed on the basis that it fails to disclose the order which the respondent was alleged to have contravened and the circumstances of the alleged contravention.

2. That this file be consolidated with proceedings number MLM 7691 of 2002 and all proceedings be adjourned to 13 December 2007 before Senior Registrar FitzGibbon at 9:45am.

3. That the minute of consent order, being an accurate record of the current orders made on 17 May 2004, be marked exhibit “A” and remain on the court file. 

4. That the minute of proposed orders sought by the mother be marked exhibit “B” and remain on the Court file and stand as the mother’s application particularising how the mother seeks to vary the parenting orders. 

5. That the hand written document marked “C” being the minute of orders sought by the father be marked exhibit “C” and remain on the Court file and stand as the father’s application particularising how the father seeks to vary the current parenting orders.

6. That pursuant to section 70NBA of the Family Law Act 1975 I make the following parenting orders which have the effect of varying the Order made

   
   

   17 May 2004:-

   (a)The operation of paragraphs 4 and 5 of the orders made on 17 May 2004 be suspended until further order, noting that the matter returns to court on 13 December 2007 before Senior Registrar FitzGibbon;

   (b)Until the adjourned date the children C born … December 1999 and H born … December 2000 spend time and communicate with the father as follows:-

   (i)Each alternate weekend commencing 3 November 2007 from 10am to 4pm on Sunday with all such time to be supervised by the paternal grandfather, …, subject only to paragraph (a) hereof;

   (ii)As may be agreed between the parents from time to time and confirmed in writing.

   (c)That the time which the children spend with the father pursuant to this order be supervised by the paternal grandfather, he having assured the Court personally, that he will remain in sight of the children and able to hear what the children say and what is said to the children during the time.

   (d)That at the commencement of the time the mother deliver the children to the paternal grandfather at his home at S and be at liberty to enter grandparents’ home and to remain with the children until the children are settled in that environment.  For purpose of delivery the parties and the grandfather ensure that the father not be present and not attend his parents home until notified by telephone by the paternal grandfather that the mother has departed and that he may then attend;

   (e)At the conclusion of the time the paternal grandfather be responsible for returning the children to the mother’s home at K by motor vehicle.  In the event that the paternal grandfather is not available to undertake the return journey himself, the return journey may be undertaken by the paternal grandmother. However, in any event the father is not to be a passenger in the motor vehicle in the which the children travel back to their mother’s home nor accompany them. 

   (f)Such further or other time and communication as may be agreed between the mother and the father and confirmed in writing. 

7. That this matter be referred to the Child Responsive Program pursuant to section 11F of the Family Law Act 1975 and the parents do all acts and things necessary and make attendances by themselves, and in the case of the mother the children, on the family consultant and the family consultant prepare a brief report of his or her assessment of the matter in time for the hearing before the Senior Registrar on 13 December 2007. 

8. That, as indicated, the operation of the Family Law Rules be dispensed with so that exhibit “C” stands as the father’s application in these proceedings and exhibit “B” stands as the mother’s application in these proceedings.

9. That on the adjourned date and subject to the discretion of the Senior Registrar, the Senior Registrar make such orders for the filing of documentation by way of applications and responses as he considers appropriate. 

10. That the father ensure that the paternal grandfather is available to meet with the family consultant at such times and dates as the father is required to meet with the family consultant but nothing in this order obliges the family consultant to meet with the paternal grandfather. 

11. That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children C born … December 1999 and H born … December 2000 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to have met the children personally be able to form a preliminary view prior to the next hearing.

12. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

13. That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

14. That the question of the liability of the father for the mother’s costs of and incidental to the contravention application filed on 15 October 2007 be reserved, noting that the mother is self represented, she drove to court today and incurred parking fees of approximately $25 plus petrol but the issue of whether or not she will be out of pocket in terms of her employment and regular remuneration is something that she can not advise at present. 

15. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties, the independent children’s lawyer and the Director of Child Dispute Services.

16. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 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 adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11352 of 2007

MR RIGBY

Applicant

And

MS RIGBY

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me today in the judicial duty list.  The applicant is the father, Mr Rigby, and the respondent is the mother, Ms Rigby. The proceedings concern their two children: C, born in December 1999; and H, born in December 2000. 

2. Both parents are self represented.  

3. The matter is brought to court on the father's contravention application filed on 15 October 2007.  It was an incompetent application.  It did not refer to the paragraphs of the order which were allegedly contravened or the circumstances of the contravention.  I have, for reasons which I expressed at the time and which are transcribed, dismissed the application.  However, in reading the affidavit material of the parties filed in support of the contravention application and in opposition to it and listening to the submissions of the father, it is apparent that C and H are children in respect of whom some consideration needs to be given as to when and how they can see their father.  Accordingly, I will not turn the parties away simply because there is no articulated application, we will deal with the substance rather than the form although it is usual that formalities will have to be addressed at some stage. 

4. I will deal briefly with a history of the matter. 

5. Final orders were entered into by the parties on 17 May 2004.  They are Exhibit “A” and they provide that the parents be jointly responsible for long term issues concerning C and H, that the children live with the mother, and the father have contact, as it was then known, with the children frequently and regularly if he is a permanent resident of Melbourne, or, if the father resides outside of Victoria, for less frequent periods of one week or two weeks each.  As best I understand it, there was only one period of contact between the father and the children pursuant to the orders of 17 May 2004. 

6. In late May 2004, the father says, he had a telephone conversation with H, who was then three or four years old, in which she was crying and upset and referred to him as having been referred to by someone else as being "nasty".  The father informed me that, after his conversation with H, he thought that the best thing he could do for the girls was to go away.  Then the father left for North America, where he travelled, living off his property settlement entitlement he had recently received in the sum of about $22,000. 

7. In March 2006 the father returned to Australia and he resided either with or near his parents in S. 

8. I should mention here a few logistical particulars missing from the court file because there is no Forms 1 or 2.  

   a)The father's residential address is P Street, S.  His home telephone number is ….  Otherwise, his details are as set out in his documents. 

   b)The father is employed full time as a driver for …, he earns some $800 or $1100 per week and he works 40 hours a week. 

   c)

   The paternal grandparents of the children live close by the father at

   
   T Street, S. 

   d)The mother resides at D Street, K. 

   e)The maternal grandparents live across the road in D Street, K. 

   f)The mother has not repartnered and, as I understand, it, neither has the father. 

9. Returning to a history of the matter, as the matter comes to court today, the father has not seen the children since May 2004 notwithstanding that he has been living about 20 minutes drive away, by car, for the last 18 months. 

10. The children do not know that their father is back in Australia.  The mother says that, in fact, the children do not “know” the father at all by which she means that, by reason of him having last seen them in May 2004, the children do not recognise him as their father on a psychological or emotional level. 

11. The father says that he tried to contact the mother by telephone after he returned to Australia in March or April 2006 but she did not answer his calls.  He says he sent text messages, which she did not answer either.  The mother does not agree that this occurred. 

12. It is agreed that the parties went to mediation at a family relationship centre and were both seen, although not together, on 13 March 2007.  The father was seen separately in January 2007.  The mother says that the first notice she had of the father having returned to Australia in 2006 was a telephone call from the paternal grandparents, or one of them, in September 2006.  The father filed his contravention application on 15 October 2007. 

13. I have not had the benefit of taking any viva voce evidence from the parties.  In response to my questions, I have compiled the above details.  It appears that the father's efforts to see his children since March 2006 have been conspicuously slight, but maybe a full and detailed history in writing would render another conclusion or maybe not.  In all of the circumstances, I would welcome an assessment of the family by a family consultant, some of which assessment will involve looking at the history but most of which I think will be directed to the future. 

14. In relation to child support, it seems that the father has not been paying child support commensurate with his income of $800 or $1100 per week.  At that level of income, his liability would properly be assessed at about $140 per week.  He says that since March 2006 there have only been two or three weeks he has been paid anything like that amount, otherwise he is paid significantly less. 

15. At the callover I made each party aware that, after dealing with the contravention application I would consider making any variation to the existent parenting orders.  To that end, each party reduced to writing what parenting orders they sought. 

16. The orders sought by the mother are Exhibit “B”. 

17. The orders sought by the father are Exhibit “C”. 

18. I have considered the matter, having regard to the primary and the additional considerations that I am required to take into account under Part VII of the Family Law Act 1975.  I do not propose to discuss the legislative pathway described in Goode’s case[1].  However, that is the process by which I have reached my conclusion.  It is not necessary for me to detail my reasoning because upon me putting to each party what I considered was an appropriate outcome, each said that they were agreeable to it. 

    [1] Goode & Goode (2007) 36 Fam LR 422; (2006) FLC 93-286, [2006] FamCA 1346

19. The regime which I have ordered requires a level of cooperation from not only the parents but also from their parents.  That is, the maternal and paternal grandparents of the children; in particular, the paternal grandfather, who is in court.  That is Mr Rigby Snr. 

20. The paternal grandfather, Mr Rigby Snr, has not given any sworn evidence but he has been sitting in the body of the court and has answered certain questions from me.  His desire to see the children regularly was palpable.  Through our interchange, which was transcribed, I am satisfied that he understands his responsibilities as a supervisor for the time being, that he will be with the children at all times and able to hear what they say and what is said to them.  It is an onerous task, which is why I asked on a few occasions whether the hours of 10am until 4pm were too much each Sunday.  He says they are not, but, in the event that it turns out that they are, the most responsible and appropriate thing to do would be to cut some of that short, and I will leave it to him to suggest that. 

21. I have concluded that the children’s time with the father should be supervised for the time being.  However, supervision is not necessarily in place because

    
    

    I appreciate that the father is a risk to the physical or emotional wellbeing of the children.  It is in place because it is a very long time in the lives of these children since they have seen their father.  I agree with the mother in that the children are unlikely to have much of a personal relationship with him at the moment.  It is common ground that the children recognise their paternal grandparents.  

22. Neither parent gave evidence on oath but each presented his/her case unfiltered by legal representation.  Discussion with each parent has allowed me to form some impressions of each of them. 

23. I am concerned that the father chose to be absent from the children’s lives for such a long period.  However, from the vantage point of a duty list, I do not make any findings about his motivation and nor do I assess the father in terms of his willingness or availability to have a meaningful relationship with the children.  Likewise, I cannot assess comprehensively the mother’s preparedness to facilitate a meaningful relationship between the children and the father.  However, I do note that she was indignant in relation to the contravention application but appeared at all times prepared to offer a regime for the father to spend time with the children which, it appears to me, was well thought out and well balanced in terms of the children’s needs and requirements. 

24. This is a case which I feel would be advanced by a reportable assessment of the parties and the children by an appropriately qualified social scientist.  I am pleased, therefore, that the family can be taken into the child responsive program of family assessment offered by the Child Dispute Services section of the Court.  I am informed that the parties will be notified by the director of Child Dispute Services as to when they are required to attend for interviews.  That is, attend themselves and with the children. 

25. The paternal grandfather should also be available to see the family consultant.  I have not ordered that the family consultant necessarily see the paternal grandfather however, he or she may wish to do so because he is going to be a supervisor of the time that is spent between now and mid‑December.  

26. Neither party opposed the appointment of an independent children’s lawyer.  

    
    

    I am satisfied that the children’s interests would be well served for one to be appointed now and I will make that request to Legal Aid Victoria. 

27. The Director of Legal Aid Victoria will consider the request and, I expect, appoint a practitioner as the independent children’s lawyer for C and H within the meaning of Division 10 of Part VII of the Act.  The role of the independent children’s lawyer will be to form an independent view, based on available evidence, of what is in the children’s best interests and then act in these proceedings in what he or she believes to be the best interests of the children.[2]  The independent children’s lawyer is not a legal representative retained by the children and they is not bound by any instructions from the children.[3] 

    [2] s 68LA(2) Family Law Act 1975 (Cth).

    [3] s 68LA(4) Family Law Act 1975 (Cth).

28. The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the children (or either of them) are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[4] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[5]

    [4] s 68LA(5)(d) Family Law Act 1975 (Cth).

    [5] s 68LA(5)(e) Family Law Act 1975 (Cth).

29. In this case, it would be advantageous for the children for the independent children’s lawyer to have the opportunity to discuss the matter with the family consultant following the completion of the family consultant’s assessment and before the adjourned date.  I will request that the independent children’s lawyer communicate to each of the parent’s his/her preliminary view of what orders should be made on 13 December 2007.  He or she should be in a position to inform the Senior Registrar of that view if the Senior Registrar asks for it.  Of course, the view is preliminary and it may change. 

30. As indicated in my discussion with the parties I have suspended the operation of the Family Law Rules 2004 so that each party can just rely on their aide memoire of orders sought as an application and a response.  When the matter comes before Senior Registrar FitzGibbon on 13 December 2007 it will be for the Senior Registrar, if he considers it appropriate, to require the parties to make an application for the orders they seek into the future.  

1. Finally, I reserve the question of the mother's costs, noting that she is unable to say at this stage whether she will be out of pocket for income for her attendance at court today.  That is only fair, because the application that brought her to court had no legs.  I reserve the question of the liability of the father for the mother's costs of and incidental to the contravention application filed on 15 October 2007, noting that the mother is self represented, she drove to court today and incurred parking fees of approximately $25, plus petrol; but the issue of whether or not she will be out of pocket in terms of her employment and regular remuneration is something that she cannot advise at the moment.  

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  23 November 2007