Smythe and Leopold

[2010] FamCA 1267

FAMILY COURT OF AUSTRALIA

SMYTHE & LEOPOLD [2010] FamCA 1267

FAMILY LAW – CHILDREN- leave granted for intervener to withdraw – child to spend supervised time with the mother – mother permitted to communicate with the child

Family Law Act 1975 (Cth)

APPLICANT: Ms Smythe

RESPONDENT: Ms Leopold

INDEPENDENT CHILDREN’S LAWYER: Mr Fitzgerald

FILE NUMBER: LNC 391 of 2008

DATE DELIVERED: 22 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 22 December 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Turner

SOLICITOR FOR THE RESPONDENT Mr Mason

SOLICITOR FOR THE INTERVENOR: Mr Verney

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER The Legal Aid Commission

Orders

IT IS NOTED

1. The proceedings in the State Court have been brought to an end and the interim order has been vacated.

   IT IS ORDERED

2. Leave be given to the intervenor, the Department of Health and Human Services to withdraw and leave be given to the Independent Children’s Lawyer to provide information as to the well-being of the child to the Department as and when the Independent Children’s Lawyer considers appropriate.

3. These proceedings be adjourned for mention before me at 4.00pm 24 January 2011 and leave be given to the parties and their representatives to appear by telephone by dialling ...

   IT IS FURTHER NOTED

4. The mother’s address for service remains at B Street, Town W in the State of Tasmania.

5. The mother is applying for legal aid and it may take some time for legal aid to be approved.

   IT IS FURTHER DIRECTED

6. On 24 January 2011 the parties have available details of the evidence they intend to call and evidence they intend to rely upon on the final hearing.

   IT IS ORDERED

7. UNTIL FURTHER ORDER The child E born … 2006 (“the child”) spend time with the mother at EE Park for one hour on Christmas eve at times to be agreed in writing between the parties and if unable to be agreed, between 4.00pm and 5.00pm at EE Park on Christmas eve.

8. UNTIL FURTHER ORDER Ms Y and the mother be permitted to communicate with the child for up to one hour on Christmas Day from 11.00am until 12.00pm and that a letter is sent to the mother tomorrow by express post informing her of telephone numbers to make that call and further telephone communication with the child at 7.30pm each Monday and Thursday which can include Ms Y and the mother.

9. UNTIL FURTHER ORDER the mother be restrained from removing the child from the father’s care or taking the child into her care.

10. Pursuant to s.65DA(2) and s.62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

11. The question of further time be reserved for determination to 24 January 2011.

12. Leave be given for the matter to be listed before me on the giving of seven days notice to the Court and to the other parties.

13. Leave be given for Mr J’s reports be made available to the mother’s General Practitioner and any medical therapist to whom she is referred by that medical practitioner.

    IT IS CERTIFIED

14. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: LNC 391 of 2008

MS SMYTHE

Applicant

And

MS LEOPOLD

Respondent

REASONS FOR JUDGMENT

1. The matter of Smythe & Leopold came before me on 15 December 2010, at which time consent orders were made.  This was in circumstances where the child had been removed from the mother’s care by the Tasmanian Director of Health and Human Services pursuant to an order of a State Magistrate.  Orders were made by me, and subsequent to those orders, the state care proceedings were brought to an end.  At that time, I had before me a number of reports and affidavits which I dealt with on the last occasion.

2. The matter was brought back today so that I could put in place arrangements for the child to spend time with and communicate with her mother and sister over the Christmas/New Year period.  No further evidence has been filed or put before me.  Some submissions were made, some of which contain evidence to which, of course, I can have no regard to.  I can have regard to it, however, as part of the position of each of the parties. 

3. The father proposes that the child spend one hour with the mother and with her sibling, Ms Y, on 24 December 2010 at the home of his brother, Mr BB Smythe, and his brother’s wife.  He also sought orders that no other person be present.  It was suggested that the mother and Ms Y spend as much time as possible with the child through a contact centre between now and when the matter comes back, and that there be telephone calls on Christmas Day and 7.30 each Monday and Thursday.  Unfortunately, the lines of communications between the parties has been somewhat difficult, as the mother has terminated the instructions of her previous solicitor and has instructed Mr Mason on a direct brief, so he is not the address of service, and the mother has yet to finalise arrangements for further legal representation. 

4. I took a short adjournment so that Mr Mason would be able to take instructions from his client.  Her position was that her distress at what has happened has been so significant that she was unable to see the child, though I am fairly confident that she wants to see the child but she was unable to see the child and maintain composure.  She suggested that she see the child for one hour on Christmas Day at the EE Park and that with her would be her other adult children, James and Jonathan, and a fiancé of one of her children, Jakara, and that there be no other time and no other telephone communication subject to the mother dealing with her emotional distress, which Mr Mason described as somewhat delicate.

5. The Independent Children’s Lawyer, albeit somewhat reluctantly, said that the only option open, or submitted the only real option to me, was that suggested by Ms Turner on part of the father.  Of course, I am still bound by the same evidence that I had on the last occasion, including that of Mr J and that of the family consultant and the affidavits that are attached to it.  I do not intend to make any findings as to whether the mother’s difficulties in engaging with the child at this stage are child focused, as she suggests, or parent focussed, as Ms Turner suggests.  That is a matter for final hearing.  What is important, however, and what I take from the reports, is that Ms Y needs to have time with her sister and that the child needs to know that her mother has not abandoned her and is not abandoning her.  What I intend to do is do the best I can within the parameters that are provided to me by the evidence from 15 December 2010.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 22 December 2010.

Associate:     

Date:              22 December 2010