South and South

[2008] FamCA 813

FAMILY COURT OF AUSTRALIA

SOUTH & SOUTH [2008] FamCA 813

FAMILY LAW – ORDERS – Variation - Children

Family Law Act 1975 (Cth)

APPLICANT: MR SOUTH

RESPONDENT: MS SOUTH

FILE NUMBER: DGF 1930 of 2002

DATE DELIVERED: 28 MAY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 28 MAY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MS McHUGH

SOLICITOR FOR THE RESPONDENT: ANN E. GAMBETTA & ASSOCIATES

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR FINN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MARSHALLS & DENT

ORDERS

IT IS ORDERED:

1. THAT the order of Registrar Riddiford dated 3 February 2004 be discharged by removing from paragraph 1 there of the name of the eldest child of the marriage D born … August 1990.

2. THAT the Form 1A response filed by the husband in the Geelong Magistrates Court on 11 January 2006 be discharged.

3. THAT if the application filed in this Registry on 7 February 2006 is one and the same as the order sought filed in the Geelong Magistrates Court then that application in this court be likewise dismissed.

4. THAT the appointment of the Independent Children’s Lawyer continue until further order.

5. Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

6. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

7. THAT all subpoenas now before this court be forthwith returned by the subpoenas clerk, Family Court, Melbourne Registry to the person or organisation who produced such subpoenas to the court.

IT IS NOTED

A.THAT the eldest child D was at court in the company of his father and did seek to address the court.  That was opposed by the solicitors appearing for each of the other parties.  I declined to hear D on any issue given the order made discharging the requirement for him to live with his mother.

B.THAT the Independent Children’s Lawyer was requested to discuss and explain these orders with D and, if the circumstance arose, facilitate any other available counselling that he may require with the court in addition to his ongoing and independent psychological assistance provided outside of this court.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 1930 of 2002

MR SOUTH

Applicant

And

MS SOUTH

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of South is before me in the judicial duty list.  The father appears in person and his address for all future service of documents is ….  Ms McHugh represents the wife, and Mr Finn, solicitor, appears as the independent children's lawyer.  The matter was before Registrar Riddiford last week, at which time the husband did not appear.  I likely accept that he did not reasonably know of that hearing date but, in any event, it does not matter because orders were not made on that occasion.  The matter was effectively adjourned to me in this judicial duty list this day.

2. I have required the husband to make, file and serve a notice of address for service and that has now been attended to by him.  On the prior occasion Mr Finn submitted orders to the court which would have had the effect of discharging prior orders of this court and making fresh orders for the four children of this marriage to live with the wife and not spend time with and communicate with their father. 

3. The history of this matter, as best I can understand, is that on 3 February 2004 consent orders were made for the four children - D, aged almost 18 years of age, A aged 16 years of age, B aged 13 years of age, and C aged almost 11 years of age - to reside with the mother.  Their contact with their father was reserved.  I observe that there was a notation to the order that the husband will seek contact with the children after his release from prison.  I understand because I have asked the husband and he has told me that he was sentenced to a term of approximately 20 months in prison for sexual-based offences, the particulars of which I do not need to traverse.

4. Likewise, I have indicated to the husband that I am not re-hearing any criminal matter and I simply take the record of those hearings in a different court as they are recorded and generally as he has told me.  On 11 January 2006 the father filed a response to an application for final orders in the Geelong Magistrates' Court and the order he sought therein was in the following terms:

   That following a positive psychiatric report, that for a period of up to one year the husband have contact supervised at a contact centre, and this contact centre provide the court with a report.

5. That is the only extant ongoing application before the court.  In support thereof the husband filed a detailed affidavit in the Geelong Magistrates' Court on 11 January 2006.  Thereafter, he has now told me that he has had various solicitors acting for him but they have now all ceased to act.  He currently has no solicitor and informs the court that he has no money and no facility to legal advice, that Victoria Legal Aid will not extend aid to him and that he has now the requirement to act for himself.

6. I have expressed the view to him that the past application sought by him is largely redundant.  It has not been followed up, there is no current information before the court and it must be read in the light of the recent affidavit of Dr K, clinical and forensic psychologist, filed 24 April 2007 which I have read.  That affidavit was filed by the independent children's lawyer. 

7. The position this morning was that the eldest son, D, attended at court with the father.  He sought an audience with the court.  I have asked of Mr Finn and Ms McHugh whether they seek to retain the current order whereby D is ordered to live with his mother.  They have both confirmed that D has been residing with his father for the past seven months or thereabouts, has not been returned to his mother and she does not seek any order or enforcement action for his return.

8. The mother, further, is not at court this day.  Ms McHugh on her behalf has indicated that she would not oppose any order deleting D’s name from the past order of the court made over four years ago.  Mr Finn takes a somewhat pragmatic view and likewise - for a child to turn 18 in August of this year - does not seek to retain an order made four years ago.

9. I am aware that D, through both his father and Mr Finn, indicated that he wanted to make a statement to the court.  In view of the fact that I am prepared to discharge that order, I do not intend to hear from D.  I certainly express the view that if he is continuing with counselling or with other psychological services, they be retained and act to his advantage, and if he needs help this community should most certainly provide to any child under 18 all of the appropriate help, counselling and advice that his needed.  That is, however, not a matter that I can order, and I observe there is no other particular request for any in-house counselling or service to be afforded him or the other children.

10. In proposing to vary the order of 3 February 2004 by deleting D’s name therefrom, I will otherwise retain all other aspects of that order insofar as they relate to the other three children.  There is no evidence before me upon which I could act to discharge any of the provisions of that consent order.  I also intend to retain the ongoing appointment of the independent children's lawyer.  It may be from time to time there will be matters in the children's interest or, otherwise, urgent matters that might arise where Mr Finn will need to be active in his representation of the children.

11. I have been referred to and have seen the affidavit and report of Dr K filed 24 April 2007.  I do not propose to incorporate passages of that report into these extempore and brief reasons for judgment.  I record, however, that the conclusions in that report are clearly a matter of very real concern to the court and clearly to this family.  I do not make any finding as to the husband's current mental state or his own circumstances, but certainly the conclusions of that document raise grave issues. 

12. I record that I have told the husband that if he is to bring any proceeding to this court then he needs to present that report of Dr K to a clinical psychologist or to any psychiatrist to whom he may refer himself and to have a meaningful, full and complete report dealing with Dr K's issues and providing information and detail to the court of such substance that the court could understand there are ongoing issues that may be relevant to any change of the current order.  Of course, any such document would have to be provided to the solicitors, both for the wife and for the independent children's lawyer. 

13. For those very brief reasons and in a busy duty list I propose to make orders as follows.  In the matter of South the structure of the order will be as per the 9 September 2006 order, save that the M Law Centre is deleted and the husband now acts for himself and his address is ….

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: