Sheenan and Sheenan

[2009] FamCA 922

FAMILY COURT OF AUSTRALIA

SHEENAN & SHEENAN [2009] FamCA 922

FAMILY LAW – CHILDREN AND PARENTING ISSUES – First day Less Adversarial Trial – Matter not able to commence – Parties awaiting commencement of supervised contact at a contact centre – Husband on criminal charges for assaulting wife now released on bail – County Court trial to commence in 2010

Family Law Act 1975 (Cth)

APPLICANT: MS SHEENAN

RESPONDENT: MR SHEENAN

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10568 of 2007

DATE DELIVERED: 16 SEPTEMBER 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 16 SEPTEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS TEICHER

SOLICITOR FOR THE APPLICANT: HUGHES WATSON MARKS KENNEDY

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR RAMSAY

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: AGRICOL WUNDERLICH & ASSOCIATES

Orders

IT IS ORDERED:

1. THAT the further hearing of all extant applications be next listed for mention or a directions hearing before Registrar Riddiford, or such other Registrar of the Family Court, Melbourne Registry, as may be then available on a date to be fixed in late February 2010.

2. THAT the matter be removed from the list of cases before Young J (it being noted that the matter did not commence any form of hearing this day and is not part-heard).

3. THAT the husband attend counselling and a parent course to assist him in responding more appropriately to the children and he make arrangements for such attendance at Family Relationship Centre (telephone No. …).

4. THAT the wife, at her election, contact and make an appointment with the Domestic Violence Outreach Service (telephone No. …).

5. THAT the husband and wife and Independent Children’s Lawyer continue to do all acts and things and give necessary and proper instructions to facilitate the implementation of the orders pronounced 1 July 2009 and for the husband to commence spending time with each of the three children of the marriage as soon as practicable at T Contact Centre, on a supervised basis as therein ordered.

6. THAT the Independent Children’s Lawyer forthwith provide to T Contact Centre a copy of the Family Report of Ms F dated March 2008.

7. RESERVE liberty to each party to apply upon proper material filed if any circumstance of urgency arises, and subject to the direction of a Registrar of the Court.

8. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties, the Family Consultant and T Contact Centre (they to be provided with a copy of these orders by the Independent Children’s Lawyer).

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the wife and the Independent Children’s Lawyer.

IT IS NOTED

A.THAT the husband’s criminal trial remains listed in the County Court of Victoria in or about May 2010.

B.THAT the husband remains living with his parents and family in the address at C (telephone No. …).

C.THAT the husband was not represented at Court this day but, on what he has informed the court that is in no way his fault and he has now been referred to a firm of solicitors to hereafter represent him in any subsequent proceedings in this court.

D.THAT the Family Consultant Mr E is not currently required to prepare any updated Report.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10568 of 2007

MS SHEENAN

Applicant

And

MR SHEENAN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Sheenan and the independent children’s lawyer is before me as a first day less adversarial hearing.  The husband appears in person.  Ms Teicher of counsel appears for the wife, and Mr Ramsay of counsel represents the independent children’s lawyer.  There are three children of the parties, and they are presently aged 9, 8, and 5 years.  The children live with their mother.  I have looked at the history of proceedings in this court, which commenced back in October of 2007 with an application for a recovery order.  Thereafter, the proceedings have regularly been before Senior Registrar FitzGibbon or otherwise various judges of this court.

2. The orders most recently made were orders of 1 July 2009, and those orders were made at a time when the husband was released from prison where he had been held on bail following an alleged assault upon the wife in August of 2008.  The effect of those orders was to radically suspend previous time spent by the husband with each of the three children.  The order which was made by the court on that day provides for a future period of supervised time to be spent at T Contact Centre, two hours a fortnight, when that Centre is able to accommodate this family.

3. From inquiries I have made today, both the husband and wife have completed the intake assessment forms, and I was advised that by December of this year, there should be that two hour fortnightly time spent arrangement commencing.  The overhanging issue is that the trial of the husband on criminal charges outstanding is scheduled for hearing in the County Court in May 2010.  I make no comment at all upon the trial or any outcome thereof.  These proceedings focus upon the three children and, in view of the current order of the court and ex tempore reasons for judgment delivered by the Senior Registrar, those orders remain in place and govern the ongoing circumstances of this case.

4. The father did endeavour to raise a scenario of spending some time with the children now, in person or by telephone, but I do not entertain any such application to make an oral application to the court.  The family consultant engaged in this matter is Mr E, and he has prepared an issues paper of 5 August 2009, which I have read.  I will make arrangements for another copy of that document to be photocopied and provided to the husband today.  The position of Mr E is that any further court proceeding or proposed variation of any current interim order should be held in abeyance pending the resumption of time to be spent later this year and thereafter an assessment made at an appropriate time and at the direction of a registrar of this court.

5. In his report, Mr E made particular recommendations for the father to seek counselling and advice from Family Relationship Centre, and I will make that order.  He further offers a service to the wife of a domestic violence outreach service, and that may already be in place following upon the acceptance by the mother of that offer of advice.  At the request of Mr V, I will have a copy of the earlier confidential family report prepared by Ms F dated March 2008 to be made available to T Contact Centre, and I will empower the independent children’s lawyer to forward that document, and I do understand that the current issues paper of Mr E has already been provided to T Contact Centre by the wife.

6. It is important, and I endorse T Contact Centre having an understanding of and background to this family and issues that have occurred over the past few years.  In terms of ongoing case management of this matter, it would seem inappropriate, and counsel for both the wife and the independent children’s lawyer endorse the fact that there should not be a first day hearing today.  This matter should not be part heard when there are momentous steps ahead, including the commencement by the husband of time spent with the children at T Contact Centre and, of course, in May next year the criminal trial in the County Court.

7. What I propose to do is to refer the matter back to the Registrar, in this case Registrar Riddiford, or such other Registrar who may be available in or about late February to conduct some form of telephone assessment conference with the parties, including the husband in person, and to ascertain if T Contact Centre has commenced their services with the children and the father, and whether that is progressing and, if so, in what positive manner or otherwise.  Thereafter, the reality of the matter would seem to be that the criminal trial and its outcome is fundamental to what meaningful order can be made, both in terms of time and implementation, but more importantly in terms of the welfare and emotional security of the three children.

8. I therefore do not intend to commence any aspect of this case today.  I have prepared these ex tempore reasons whilst on the bench to give an indication of the issues that have been raised.  I will not require Mr E to prepare any ongoing family report, and the necessary steps in terms of T Contact Centre and then the criminal trial process can be taken in their due course.  I will reserve liberty to apply so that if the matter has to be mentioned, either to a registrar or then by their direction to a court, the matter could come back to court in the event of any significant event in the early part of next year and which may require any level of judicial intervention.

9. I will have these reasons transcribed and placed upon the court file so that any registrar hereafter dealing with the matter can understand that there is no continuing defended hearing and this matter is awaiting further events and directions.  I record that the court had in place a security plan today.  The wife was in court, accompanied by trusted members of her family or friends, and the matter has proceeded to this point without any issue.  Finally, the husband is self-represented.  That is unfortunate, but it is not of his doing.  He had arranged solicitors to appear today, but for some incomprehensible reason and on short notice, they returned his papers to the husband and declined to act, saying that the case “was too big for them to handle”.

10. They have now given him a referral to a suburban firm, thought by the husband to be Pearsons.  It is hoped that the husband will, with the continuation of legal aid, be legally represented next time, but I certainly understand it was of no fault of his that he was without legal representation.  The husband’s address for service remains at the C address, and for purposes of any necessary communication, and it is not to be done by way of improper phone calls, his land line number is …, which I will incorporate within the order.  The husband has told me that he lives at home with members of his family.

11. I will have those reasons now transcribed, placed upon the court file, and made available to all parties.  A copy will need to be sent to Mr E and I empower the independent children’s lawyer to forward a copy of these reasons to T Contact Centre if that is thought appropriate, along with the past report of Ms F. 

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: