Stanton and Stanton

[2010] FamCA 459

FAMILY COURT OF AUSTRALIA

STANTON & STANTON [2010] FamCA 459

FAMILY LAW – CHILDREN – Magellan list – interim hearing – where prior orders for children to live with the mother and spend supervised time with father –  where father seeks to withdraw his application – where concerns about the psychiatric state of the mother and psychiatric assessment of the mother due to be completed – matter to proceed on undefended bases at next hearing if no appearance by father

Family Law Act 1975 (Cth)

APPLICANT: Ms Stanton

RESPONDENT: Mr Stanton

INDEPENDENT CHILDREN’S LAWYER: Mr J Bult

FILE NUMBER: MLC 3840 of 2009

DATE DELIVERED: 19 March 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 19 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D McLeod

SOLICITOR FOR THE APPLICANT: Faram Ritchie Davies

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Riordan Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER David Stagg Tonkin & Co

Orders

1. That this matter is adjourned before myself and the Magellan Registrar on 21 May 2010 at 10.00 am when the mother will seek final orders for:-

   a)     sole parental responsibility of the children L BORN … July 2004 and B born … February 2006 and H born … July 2007;

   b)     that the children reside with her; and

   c)     that any time or communication between the children and the father be reserved.

2. That the independent children’s lawyer distribute to each of the parties the report of Dr S, psychiatrist, when it is to hand and, in the case of the father, to any solicitors on the record for him and to him personally by pre-paid post to PO Box ….

3. That I discharge the directions made at the trial notice listing on 7 December 2009 insofar as it requires the parties to file documents in anticipation of a final hearing and a pre-trial conference on 28 April 2010.

4. That the pre-trial conference listed for 28 April 2010 at 2.15 pm be and is hereby vacated.

5. That the reasons for judgment this day be transcribed and when transcribed copies be made available to the parties AND IT IS REQUESTED that the independent children’s lawyer provide a copy of them to Dr S, psychiatrist.

   AND THE COURT NOTES:

A.That the solicitor for the husband has advised the Court today that her client wishes to withdraw his application and seeks no orders entitling him to spend time with, or communicate with, any of the children.

B.That in the event that in the event that there is no appearance by or on behalf of the respondent father on the adjourned date, 21 May 2010, final orders may be made as sought by the applicant mother and described in paragraph 1 of this Order without any further input from the father.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3840 of 2009

MS STANTON

Applicant

And

MR STANTON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ex tempore

1. This proceedings concern L, born in July 2004, and B, born in February 2006.  The father’s solicitor has advised the court today that the father wishes to withdraw his application and seeks no orders entitling him to spend time with or communicate with either of the children.  It is noted by the court that, in the event that there is no appearance by or on behalf of the father on the adjourned date of 21 May 2010, final orders may be made, as sought by the mother, without any further input from him. 

2. In brief, this matter comes before me in the Magellan Duty List.  Mr McLeod of counsel appears on behalf of the mother, Ms Mercuri appears via telephone link on behalf of the father and Mr Bolt is the independent children’s lawyer and attends court.

3. The current orders in relation to the children were made on 30 July 2009 and provide that the children reside for the time being with the mother, and that the father spend time with the children at Y Contact Centre.  As part of the court’s preparation of the matter for trial, a family report dated 3 December 2009 was prepared by Mr A, family consultant. 

4. The matter was listed today for the determination of any interim applications, but was otherwise on track for a final hearing in June or August 2010, and in particular, was to be reviewed at a pre-trial conference on 28 April 2010.  In the lengthy report of Mr A, he expresses reservations about the father’s conduct as well as about the mother’s psychiatric state, her insight into it and her frankness with him in describing it. 

5. On 7 December 2009, the mother and the father were ordered to attend upon Dr S for a psychiatric assessment.  I am informed that the interview assessment by Dr S of the father was conducted in February 2010 and that Dr S is due to see the mother on 23 April 2010. 

6. Today, there was initially no appearance by or on behalf of the father.  However, the practitioners for the applicant mother and the independent children’s lawyer were directed to contact the solicitors on the record and have done so.  As a consequence, Ms Mercuri appears by telephone on behalf of the father.  She has informed the court, as indicated, that the father does not wish to proceed with his response filed 25 May 2009, in which he sought shared parental responsibility in relation to L and B, that the children live with the mother and spend time with him on weekends, special occasions and school holidays.

7. The mother now seeks to proceed with her application filed 28 April 2009, in which she sought equal shared parental responsibility, that the children reside with her and that the father have supervised time at the Y Contact Centre. 

8. The independent children’s lawyer recognises that there are limited options and does not seek to persuade the court that orders may not ultimately be made in favour of the mother, particularly as the father does not proceed with his application.  However, his strong preference is that the report of Dr S be completed; that is, that the mother be seen by Dr S.  In all of the circumstances, I am convinced that this is a responsible and appropriate course to take; it is the mother’s mental health, her insight into it and frankness about it that was of concern to the family consultant.  It may be that, arising out of that assessment, there are some conditions which should be attached to any entitlement of the mother to have the children reside with her. 

9. Further, there is the issue of shared parental responsibility.  Shared parental responsibility imposes upon each of the parents an obligation to discuss and negotiate matters concerning the children.  There are clearly concerns about both of the parents, apparent in the family report and the documents on the file.  I have concerns about the viability of an order for shared parental responsibility, as opposed to either an order for sole parental responsibility or no order in relation to parental responsibility, which would leave the parties in the statutory position of each independently being able to exercise parental responsibility. 

10. In relation to time between the father and the children, I have been handed a letter dated 19 February 2010 from Y Contact Centre, directed to the solicitors for the father and copied to the solicitors for the mother and to the independent children’s lawyer.  The letter advises that the father had withdrawn from using the contact service for supervised visits with his children, B and Y.  It would therefore appear that any orders that were sought by the wife in her original application for supervised time are otiose. 

11. The matter will come back before me in the Magellan Duty List in May.  At that stage, the court and the parties should have Dr S’s report.  If the matter remains unopposed, I will deal with it finally on that day.  If it is not unopposed by that stage, the matter will be prioritised and the parties will face a trial in the very near future if that is what is required. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett  

Associate: 

Date:  31 May 2010