Tailor and Apted

[2010] FamCA 409

FAMILY COURT OF AUSTRALIA

TAILOR & APTED [2010] FamCA 409

FAMILY LAW – PRACTICE AND PROCEDURE – Case Management and trial issues

APPLICANT: MS TAILOR

RESPONDENT: MR APTED

INDEPENDENT CHILDREN’S LAWYER: MS NICOLA WATTS

FILE NUMBER: MLC 303 of 2008

DATE DELIVERED: 10 MAY 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: JUSTICE YOUNG

HEARING DATE: 10 MAY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms V. Theoharopoulou

SOLICITOR FOR THE APPLICANT: Altavilla Vessali

THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms N. Watts

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Septimus Jones & Lee

Orders

IT IS ORDERED:

1. THAT the three (3) day defended hearing commencement date of 30 June 2010 be confirmed.

2. THAT on or before 28 May 2010 each of the husband and wife make, file and serve their trial affidavit, a statement of financial circumstances and an amended copy of orders sought.

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

IT IS NOTED

A.THAT to the extent that a safety plan is to be developed and put in place for this hearing, if necessary, the solicitors for the mother are to disclose their requirements to all other parties and otherwise are to liaise with my associate upon the implementation of all proper requirements.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 303 of 2008

MS TAILOR

Applicant

And

MR APTED

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In the matter of Tailor & Apted, the matter is before me for case management pending the commencement of a three-day defended hearing on 30 June of this year.  Ms Theoharopoulou, of counsel, appears for the applicant mother.  The father appears in person by telephone, this day and Ms Watts appears as the Independent Children’s Lawyer.  The matter was last before me on 18 December of last year and, on that occasion I ordered the preparation of a family report, and generally made case management orders.  Thereafter, the matter has returned for hearing before Registrar Lethbridge, and the report of Mr A was then released to the parties.  Though the husband appears in person by telephone this day, he has confirmed that his solicitors for the hearing will be Purcell & Purcell. 

2. I have endeavoured to ascertain the issues in the defended hearing, and this summary is not exclusive of other issues which may, of necessity, arise.  The first, and primary, issue of the mother is that of sole parental responsibility for the two children:  R, who is almost 15 years of age; and C, who is twelve and a half years of age.  Both children suffer from a degree of autism, as was touched upon in my earlier ex tempore judgment, and as dealt with in notation B. to my earlier orders of 18 December 2009.  Pursuant to that order, it was then envisaged that there would be no independent medical evidence called as to their health, well-being or schooling, and that matter has been reconfirmed today, at least insofar as it relates to viva voce evidence.

3. It may well be helpful to the court for there to be a report from the primary medical practitioner, or from each of the schools which the children attend, as to their current circumstances and their ability to deal with their medical issue.  If so, that report should be made available to all parties well prior to the commencement of the hearing, and form part of the documents to be relied upon in evidence before the court.  Otherwise, for the mother, the issue remains the time that the father will spend with the children and the changeover venue.  Currently, changeover for the commencement of time spent is at S Contact Centre, with a return at Y Contact Centre.  The mother supports the continuation of that arrangement, although it does involve significant travel.

4. The father’s position is that he should enjoy overnight time on a fortnightly basis with his sons, and he would have a regime of 4.30 Saturday until 4.30 Sunday in place, save where the Monday is a public holiday or school-free day, and where he has time off work so that he can have an extended period with one or both of the boys.  Those matters are in issue and, no doubt, will be the subject of discussion to be arranged in advance by the Independent Children’s Lawyer, or otherwise negotiation between the parties.

5. In my earlier ex tempore reasons for judgment, paragraph 8 thereof, I floated only an option of providing to the mother some form of sole parental responsibility as to health and/or education.  I have made no decision in that regard.  It is a matter for future discussion but, through her counsel this day, the mother indicated that might be an option available to her and in the best interests of the children.  That matter does need further considered attention by all parties. 

6. There is an issue about the passports for both boys, which have expired.  The mother seeks their renewal but plans no particular overseas holiday and, otherwise, would be prepared to give appropriate undertakings to the court that she has no current intention to travel but, more particularly, to live permanently out of Australia.  The father has some suspicion of the mother and/or the risk that she might relocate the boys away from Australia.  That matter needs further investigation and must be dealt with by the mother in her primary trial affidavit.  Likewise, any orders sought in that regard must be the subject of the detailed orders sought to be required pursuant to the earlier orders of the court. 

7. As to witnesses, the mother has indicated she may have one other lay witness which predominantly will focus upon the observations of that person of the boys and their relationship with mother, and their period of adjustment post spending time with the father.  The father has indicated that, most likely, he alone will give evidence in support of the orders which he will seek.

8. As to the Independent Children’s Lawyer, their sole witness will be the family consultant, Mr A, and they will have the obligation of ensuring his availability.  If either the mother or father wish to cross-examine Mr A, appropriate notice must be given to the court and to that professional witness.  Otherwise this matter should, comfortably, be heard within a three-day listing period. 

9. The other preliminary issue that I record in these ex tempore reasons is the necessity of a safety plan for the hearing.  The mother has previously raised that issue, and I have asked her counsel to make appropriate inquiries of what is necessary and proper.  Ideally, both parties should be in court and should hear the evidence given, and be able to personally observe the other in the witness box.  That is a far better arrangement in which court proceeding is conducted but, of course, it is subject to all genuine safety concerns.  I will ask the solicitors for the mother to have contact with my associate for the purposes of the drafting and implementation of a necessary safety plan, but that has to be done upon proper disclosure to the father’s solicitors and the Independent Children’s Lawyer. 

10. As to the timetable for filing documents, by 28 May both the mother and father must make, file and serve their trial affidavit, and file the amended statement of orders sought.  It would be helpful if a statement of financial circumstances of both of them were filed, because the travel or other overnight arrangements may have some relationship to their financial circumstances.  Additionally, it is best for the court to be aware of all child support payments made and all costs of contact, and generally the financial upkeep of the boys with their particular needs.

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: