Tadayon and Anor and Ellal

[2007] FamCA 665

FAMILY COURT OF AUSTRALIA

TADAYON AND ANOR & ELLAL [2007] FamCA 665

FAMILY LAW - CHILDREN - With whom a child spends time - Interim orders

Family Law Act 1975 (Cth)

FIRST APPLICANT: MS TADAYON

SECOND APPLICANT: MRS  TADAYON

HUSBAND: MR ELLAL

FILE NUMBER: MLC 2800 of 2007

DATE DELIVERED: 16 APRIL 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 16 APRIL 2007

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT: MR PUCKEY

SOLICITOR FOR THE FIRST APPLICANT: PEARSONS

COUNSEL FOR THE SECOND APPLICANT: MS PITSARAS

SOLICITOR FOR THE SECOND APPLICANT: DE MARCO LAWYERS

COUNSEL FOR THE HUSBAND: MR GIDLEY

SOLICITOR FOR THE HUSBAND: MERHI & ASSOCIATES

ORDERS

1. THAT paragraph 2 of the Order of Federal Magistrate Riethmuller and the undertaking given to the Court that day by the maternal grandmother continue in full force and effect.

2. THAT paragraph 4 of those Orders pronounced 23 March 2007 be discharged.

3. THAT the husband spend time with each of the four children of the marriage on each weekend between the hours of 10.00 a.m. Saturday and 4.00 p.m. Sunday (inclusive).

4. THAT for the purposes of collection and return of all children, punctually, in accordance with the previous orders they are to be collected by the husband and then returned by him to the front gate of the wife’s property at H.

5. THAT until further order each of the husband and wife be and are hereby restrained from assaulting, molesting, harassing or threatening the other or from entering inside the front fence line of each other’s property.

6. THAT all extant applications are otherwise adjourned to the Judicial Duty List on 7 May 2007 at 10.00 a.m.

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

8. THAT the solicitors for all parties forthwith make enquiries as to the current circumstances of the appointment of the Independent Children’s Lawyer and request of Victoria Legal Aid that such appointment be implemented as a matter of urgency.

9. THAT the solicitors for all parties make available copies of their applications and affidavits to the Independent Children’s Lawyer as soon as practicable.

10. THAT pursuant to s.62G(2) of the Family Law Act1975 the parties and the children attend upon a Family Consultant nominated by the Director of Court Counselling in the Melbourne Registry of the Family Court of Australia on Thursday 26 April 2007 at 9.30 a.m. for the purposes of the preparation of a Family Report to be given to the Court and that:

    (a)         The Family Report to deal with the following matters:

    (i)any wishes expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (ii)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act1975; and

    (iii)any other matters that the Family Consultant considers important to the welfare or best interests of the children.

    (b)The parties do comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Consultant.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2800 of 2007

MS TADAYON

First Applicant

and

MRS TADAYON

Second Applicant

and

MR ELLAL
Husband

REASONS FOR JUDGMENT

1. In the matter of Tadayon and Tadayon v Ellal, there are various children's issues before the court this day.  Mr Puckey of counsel appears for the wife, who is applicant; Mr Gidley of counsel appears for the husband; and Mr Pitsras, solicitor, appears for the maternal grandmother. 

2. This matter has a history before the court.  On 23 March 2007 Reithmuller FM made orders involving the maternal grandmother in the proceedings as a second applicant.  She was granted an interim residence order of the four children.  The husband was to spend time with each of the children on each week, from after school Friday to the return of school Monday morning, that is three of seven nights. 

3. There was an order made for a family consultant report to be prepared, presumably on an interim basis, and as to interim issues and an independent children's lawyer was appointed.  The matter was then transferred to this court. 

4. Subsequently the matter came before Carter J on 27 March 2007 and again on 30 March 2007.  On the first of those occasions a recovery order was issued, on the wife's application, directed to obtain the return of children from the husband. 

5. Subsequently, and when the children were returned to the mother and the matter came back to this court, procedural orders were made for the filing of affidavit material and the suspension of the earlier orders by which the children were to spend time with their husband was continued. 

6. The current position is that no Family Court consultant has been assigned for the preparation of any report.  I have had my court officer make inquiries, and that report is not under way and indeed no consultant has been assigned nor is one likely to be assigned for the preparation of an interim report.  There has been no appointment of an independent children's lawyer, and I have asked all legal practitioners to follow that matter up as a matter of urgency. 

7. In the context of this case, the circumstances of the children and their wishes, subject to their age, should be ascertained.  The four children are almost 11 years of age, almost 9 years of age, almost 7 years of age and 4.  The existing interim order is that they live with the maternal grandmother, and she has given an undertaking to the court to live in the mother's residence.

8. I am advised, and in any event read in the affidavit material, that the mother has six children, the four of this marriage and two other children, residing with her in her H residence.  The maternal grandmother has an option of leaving that home and to live with another of her daughters in nearby D.  In the current circumstances of this family and, generally, having regard to the many untested allegations, it does seem very appropriate that the grandmother remain in the home of the applicant mother and she be given real assistance with all of the children. 

9. This matter comes before me in an interim list and there has been on determination of facts.  It is an impossible task to ascertain on the documents and in the short space of time available to this case before close of court today where the truth does lie.  I qualify therefore these reasons on the basis that there has been no time nor opportunity for cross‑examination. 

10. Counsel for the mother simply proposes that the husband have five hours each Sunday between 10.30 a.m. and 3.30 p.m. with the children but no overnight time.  That is endorsed by the solicitor appearing as counsel for the maternal grandmother.  I am compelled to take very due regard of the views of the maternal grandmother because she currently has the interim residence order in her favour. 

11. The husband seeks the reintroduction of the existing but now suspended Magistrates' Court order, that is three nights in each week. 

12. One specific matter has been raised with the court and that is as an allegation and not as a statement of fact, that the husband cannot or will not return the children when periods of time spent are concluded.  I observe from the court record the necessity for a recovery order to have recently issued, and her Honour must have been wholly satisfied of the need for that recovery order in the then existing circumstances.  I do not further comment upon that judgment. 

13. With the husband in court and sitting next to an interpreter so these matters can be well and truly interpreted to him, I emphasise that orders must be complied with wholly and punctually.  There is and can be no excuse that the husband is unable to control the children or require them to be returned pursuant to orders.  Any suggestion that the children are simply too distressed to return to their home or otherwise refuse to return to the home must be met with by proper parental guidance. 

14. I do not prejudge the future.  It does seem to me that there must be time spent.  With my reading of the file, and in the context of the orders that the Federal Magistrate thought appropriate, then the current offer of five hours each week with no overnight is wholly minimal and significantly unacceptable to the children. 

15. I propose to make an order for the children to spend time with the husband on an interim basis only - pending the return of this matter to court and the appointment of an independent children's lawyer who actually does become involved in the case - for a period from 10 o'clock Saturday until 4 o'clock Sunday in each week, that is, one night overnight, with the benefit of a Saturday and a Sunday.  I regard that as a short‑term order. 

16. It may well be that the wife does need time on weekends and it may be that the order will hereafter be more likely continued on a fortnightly basis.  Again I leave that to a further hearing, further evidence and the involvement of an independent children's lawyer.  The husband will be responsible for collection and delivery. 

17. In the absence of any family intervention order, the children can be delivered to and collected by the husband at a convenient changeover venue.  I will, unless otherwise submissions are made, likely suggest that to be the front gate but not inside the property of the mother.  These parties clearly need to keep out of the immediate physical presence of each other and certainly should not enter the home of the other.

18. I will have these short extempore reasons transcribed.  I am conscious that these are interim orders and that they must be in the best interests of the children.  This is a case where a report from a family consultant would be of great assistance.  That current order remains extant and I invite all solicitors to immediately take that matter up with the director of court counselling and see if a short report dealing with relevant issues cannot be activated. 

19. Alternatively, the husband has recently made a notification to the Department of Human Services.  They have contacted the mother.  I have no report nor detail of their involvement.  If they had any concerns, they of course could have attended at court today or otherwise involved themselves in these proceedings.  I have not been asked to make any order pursuant to section 91B of the Act. 

20. All of these matters will need to be considered prior to the adjourned hearing date which I intend to fix for 7 May 2007 in this list at 10.00 a.m.  It will therefore be seen that the orders for time to be spent are made in the short term only so that some understanding can be obtained as to the suitability and workability of these orders in the best interests of the children. 

21. For those brief reasons, and if there are no submissions as to venue changeover - which, for convenience, I would intend to make the front gate but not inside the fenceline of the wife's property; and for the children to exit the car and to enter upon and to leave the wife's premises by themselves - it will also be perfectly clear to the husband and subsequently to any other judicial officer hearing this matter that the husband's responsibility is with complete punctuality to return the children to the front gate of that H property.

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

………………………………………………………..
Associate: 
Date: 6 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as TADAYON AND ANOR & ELALL