Tailor and Apted

[2009] FamCA 918

FAMILY COURT OF AUSTRALIA

TAILOR & APTED [2009] FamCA 918

FAMILY LAW – CHILDREN – Children and parent issues – First day of less adversarial trial – Order for updated family report – Specific issues – Children with autism spectrum disorder

Family Law Act 1975 (Cth)

APPLICANT: MS TAILOR

RESPONDENT: MR APTED

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 303 of 2008

DATE DELIVERED: 15 SEPTEMBER 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 15 SEPTEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS THEOHAROPOULOUS

SOLICITOR FOR THE APPLICANT: ALTAVILLA VESSALI

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS GLAISTER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: SEPTIMUS JONES & LEE

Orders

IT IS ORDERED BY CONSENT:

1. THAT each of the husband and wife do all acts and things and give all necessary and proper instructions and sign all required documents and attend each and every appointment arranged by Mr A, Family Consultant, to enable the preparation of a Family Report pursuant to s.62(G) of the Family Law Act 1975 (Cth) and that such report address the following issues:

   (a)the frequency and duration of time the children spend with the husband;

   (b)frequency and method of other forms of communication between the children and the husband including for example, telephone contact and/or other electronic communications;

   (c)whether the children should spend time with the husband on separate occasions to each other and under what if any conditions that should occur;

   (d)what arrangements are appropriate to effect changeover of the children between the parents;

   (e)the effect of the children’s medical conditions upon the time spent between the children and the husband;

   (f)the wishes of the children;

   (g)any other matters considered relevant by the Family Consultant to assist the Court’s determination;

   (h)the issue (if any) of the psychological or psychiatric wellbeing of one or both parents and for the purposes of identifying such issues the Family Consultant be authorised to rely upon previous affidavits filed by such experts and any updating report that may be commissioned in co-operation with the parties and the Independent Children’s Lawyer.

2. THAT each of the husband and wife forthwith sign all documents and do all acts and things necessary to give authority to the Family Consultant to confer with the following professionals or individuals as to all issues of and concerning the welfare of the children:

   (a)         the children’s treating paediatrician;

   (b)         Ms W and Mr P, the children’s treating psychologists;

   (c)any relevant specialist with respect to the children’s autism spectrum disorder;

   (d)the teachers, school principal and any school counsellor of any school attended by the children.

3. THAT all extant applications be otherwise adjourned for mention and case management before Young J on Friday 18 December 2009 at 10.00 a.m.

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

5. THAT all subpoenaed documents now before the Court be made available, upon appointment, to the solicitors for the wife, the husband, the Independent Children’s Lawyer and the Family Consultant.

6. THAT no less than seven (7) days prior to the further mention an updated safety plan be prepared by the Family Court of and for the 18 December 2009 hearing date.

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. The matter of Apted & Tailor is before the court as a first day hearing in the less adversarial trial process.  The father appears in person.  The mother has, as her counsel, Ms Theoharopoulou who previously was her solicitor.  Ms Glaister of counsel appears for the Independent Children’s Lawyer.

2. There are two children:  R who is 14 and C who is 12.  The children both live with their mother and have been with her since separation in July of 2004.  Both children have a level of Autism Spectrum Disorder.  The current orders are those of Senior Registrar FitzGibbon made 10 November 2008 and, pursuant to those orders, the father should now spend time with both boys on two weekends in each month between the hours of 4.30 p.m. Saturday and 4.30 p.m. Sunday and at other times by agreement.

3. There are, by consent, certain conditions attached to those orders that are clarified in paragraph 3 of the orders.  By way of background, those orders discharge earlier orders made on 26 March 2008 and 4 July 2008 but, at all times, the basis of the orders are expressed with the children living with their mother.

4. This matter does have a long history and some aspects of previous applications and of the psychological and psychiatric issues of the parties have been touched upon, though only in overview.  There have also been security issues expressed and there is a Family Court security plan on file and currently an intervention order current until the end of this year which prevents the father from following or otherwise having any level of supervision of the mother.  Previous intervention orders have now been discharged.

5. Prior to the commencement of this matter, an issues paper was prepared by Mr A, family consultant.  Mr A has been in court and has expressed certain views though he was not sworn and affirmed and what was said in court was not therefore evidence that I rely upon.  It was, nevertheless, of real assistance. 

6. The children and parents’ issue assessment is dated 31 July 2009.  It is a relatively comprehensive document given the very difficult issues that this case presents.  Mr A saw both R and C and their views are conveyed to the court.  I will not endeavour to précis that document or the views and it is important that it be read as a whole and the report and recommendations I have given very considerable weight. 

7. What did arise from the report is that, at this stage, the boys want daytime visits.  The current orders provide for overnight visits.  I have had lengthy submissions from counsel for the mother and from the father and I understand there has been a breakdown in the current orders.  Indeed, it seems that, since May of this year, the father has had the children on three occasions overnight being on one occasion in May, the weekend of 11 July and the weekend of 22 August.  Otherwise, there have been problems of the children being willing to travel to or be exchanged with their father.  Changeovers have occurred at a western suburbs contact centre.

8. There are, before the court, any number of options and issues.  The father intends strongly to maintain alternate weekends.  The mother believes that is not working and would have a more restricted limited regime in place.  There was a level of discussion in court and the Independent Children’s Lawyer made inquiries out of court about a regime where the Berry Street Centre in Richmond would be involved on a Sunday morning for the collection of the children.  They then would spend that day, but not overnight, with the father and then be returned at 6.30 p.m. on Sunday, or thereabouts, to the western suburbs contact centre.  The father did not and would not embrace that option. 

9. There are other very real issues of and relating to the separation of the children for the purposes of spending time with the father. It is said by the father that the eldest child, R, might more likely go with him but C may not. There have been some occasions of separate times spent in the past. That is an issue that should be followed up by Mr A in a more comprehensive family report prepared pursuant to section 62(G) of the Family Law Act 1975.

10. Similarly, there are issues of appropriate changeover and the father would not want to have the contact centre or like organisation but would prefer from outside of a local police station, preferably E Station, or otherwise McDonald’s.  Again, that issue can be considered by Mr A. 

11. There remains little or no level of cooperation between parents and I would not expect any direction from the court would change that scenario.  This matter has been before the court for a long time and seems destined to be in dispute for so long as these children remain minors.  That is wholly unfortunate and improper but highlights where the parents, or at least one of them, are in considering all issues. 

12. The past medical health of both parties has been raised in comments.  I am not going to make any orders, at this stage, for an updated psychological or psychiatric assessment of both parties.  I do not know and have not explored their level of cooperation with such order or who would pay the costs thereof.  Again, that is a matter that I charge Mr A with considering in the context of the past evidence on the court file to which he should have access and the issues that arise from his professional assessment of the parties, or either of them.

13. It is also vital for the court to have a very clear understanding of these children and their special needs.  It is said that regularity and routine is important to the children but that has not been part of their previous few years and the future is certainly uncertain given the parents’ lack of attention to those items of routine and/or their inability to, in any way, communicate or discuss matters with each other. 

14. I embrace the future directions as outlined by Mr A on page 7 of the report but I have already heard from the father that he would not wish to attend another post separation interview and the mother said that she has attended a particular course and would only want to be involved with that organisation and not any other and certainly not on a mutual basis with the father.  Therein lie further issues for Mr A to resolve. 

15. The children presently receive assistance from Ms W and Mr P and that should be ongoing and should be communicative in context.  That is, there needs to be, and I am assured there has been, a level of communication and understanding between each of those professionals and I encourage them to share all of their insight and concerns for both children with Mr A for the purposes of the further preparation of his report to the court.

16. I have heard any number of other issues including the father’s lack of willingness to travel distances such as from the western suburbs to Richmond or otherwise both parties have a position as to future father/children relationships that is clearly at odds with each other and currently that which Mr A has foreshadowed.  All of those matters will need to be considered and, more particularly, detailed hereafter.

17. I do not consider the current orders of 10 November to be wholly appropriate for the children.  However, there is clearly no agreement and, in the absence of the further report, I will not vary those orders.  The parties must separately negotiate Christmas for this year, presumably it will be the same as provided for in 4(a) of the past order but those matters can be discussed over lunch. 

18. What is important in these minutes to touch upon is that the orders continue in the realistic circumstance that they have not been fully complied with.  That is said to be because of the interest, concern and wellbeing of the children and their reluctance to attend.  I make it perfectly clear that there should be no enforcement application brought by the father on the basis of these current orders not being fully complied with.  That is because the history in past months has been a lack of compliance. 

19. Perhaps what was required was a change in the orders but as this is the first day in a limited hearing process and with the further report to come, I have not imposed orders that might require further and more detailed investigation.  I well understand that Mr A’s current view is no overnight contact and that may be well and truly the result in this case.  Pending the further report and given that the children have had only three occasions in the past four months with the father, I am not moved to vary the current order because that might be seen more as an acceptance of the outcome that the mother achieves rather than more the realities of hearing three matters in the day where all parties in all cases seem to be intent on creating or maintaining difficulties.

20. Whilst I understand there are other and more complex matters with this case that have not been fully investigated today, these brief ex tempore reasons, at least, touch upon some of the issues.  Before 2.15 p.m., Ms Glaister is to fine tune the scope of the further family welfare report to be prepared by Mr A, and at 2.15 I will make an order for the preparation of that report and cooperation of other professionals as may be highlighted therein.  I will have these brief reasons transcribed, placed upon the court file and made available to the parties.

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: