Tailor and Apted (No 2)

[2009] FamCA 1249

FAMILY COURT OF AUSTRALIA

TAILOR & APTED (NO. 2) [2009] FamCA 1249

FAMILY LAW – CHILDREN – Detailed family report – Children have autism – Dispute as to sole parental or equal shared parental control – Time spent issues – Defended hearing to proceed

Family Law Act 1975 (Cth)

APPLICANT: MS TAILOR

RESPONDENT: MR APTED

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 303 of 2008

DATE DELIVERED: 18 DECEMBER 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 18 DECEMBER 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 UNTIL FURTHER ORDER:

1. THAT paragraph 4 of the Orders pronounced by Rose J on 13 February 2007 be discharged.

2. THAT paragraphs 2 and 4 of the Orders pronounced by Senior Registrar FitzGibbon on 10 November 2008 be discharged.

3. THAT the father spend time with and communicate with the children R born … May 1995 and C born … December 1997 as follows:

   (a)from 10.00 a.m. until 5.00 p.m. on 26 December 2009 with change over to occur at the S Contact Service;

   (b)on each alternate Sunday from 10.00 a.m. until 5.00 p.m. commencing 3 January 2010 and for collection to occur at the S Contact Service at and to conclude at the Y Contact Service;

   (c)otherwise if there is a formal agreement between each of the parties for the children, or one or them to spend further time with the father then (and by consent only) that can be accommodated by way of extension of time provided for in these orders.

4. THAT the further hearing of all extant defended matters be listed for a three (3) day defended hearing before Young J commencing at 10.00 a.m. on 30 June 2010.

5. THAT additionally the matter be listed for case management at 10.00 a.m. on 10 May 2010 and for the purposes of that mention the father be permitted to attend by telephone link on his nominated telephone number … (and the Court is to ring the father shortly prior to 10.00 a.m. on that day to arrange that mention) and it is the obligation of the father to be punctually available and in an appropriate location to receive that telephone call.

6. THAT each of the husband and wife make, file and serve their trial affidavit by 4.00 p.m. on 28 May 2010 together with a concise statement of the final orders sought on all children and parenting matters.

7. THAT the Family Consultant, Mr A, prepare an updated Family Report in the six (6) week period leading up to the defended hearing and there to address the following issues:

   (a)the wishes of the children particularly as to the time spent with the father and any variation thereof;

   (b)the operation of these orders and any variation thereof that may be in the best interests of both children;

   (c)any other matter relevant to the ongoing interests and welfare of the children or which is regarded as a matter of importance by the Family Consultant.

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

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the mother and the Independent Children’s Lawyer.

IT IS NOTED

A.THAT the Independent Children’s Lawyer, at trial, will adduce evidence from the Family Consultant and a representative(s) of the Children’s Contact Services as to ongoing change over and matters that may have been observed that are of relevance to the proper hearing and determination of this matter.

B.THAT it is currently envisaged that there will be no independent medical evidence called as to the children’s health and wellbeing or schooling and education as these matters are known and agreed to the parties and already are in evidence before the Court or otherwise dealt with at some length in the extensive report of the Family Consultant dated 4 December 2009.

C.THAT an intake interview has been arranged for the father at S Contact Service at 4.00 p.m. on 22 December 2009 and he must attend at that interview and comply with all requirements of that contact service to facilitate the necessary authority for the 26 December 2009 commencement of their service.  Likewise the wife has an appointment for 12.00 noon on 24 December 2009 and she must attend at that date and time and do all acts required by her to facilitate acceptance by S Centre of her request for them to facilitate change over issues.

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 and Tailor and the Independent Children’s Lawyer was before me for further mention this day.  The father appeared in person, and counsel represented both the mother and the Independent Children’s Lawyer.  This matter has a long history in this court.  The remaining issue is children and parenting matters, and the children are presently 14 and a half and 12 years of age.  Each of the children have autism.  They live with their mother and spend time with their father.

2. There was a very detailed report prepared by Mr A, Family Consultant, and that was read by all parties and the court.  It offered a recommendation to the court to vary existing orders that had been previously made by his Honour Justice Rose and by Senior Registrar FitzGibbon.  The effect of those orders was to put in question the continuation of overnight time on the basis of the wishes of one or both children and, more particularly, the matters discussed at detail in that report. 

3. The father’s position was straightforward in that he sought to retain overnight time with both of his sons, and, additionally, to retain the shared parental responsibility.

4. The mother’s position was to seek sole parental responsibility, and, therefore, discharge what is currently the status quo in that regard.  The mother further sought to vary the existing orders so as to eliminate any overnight time spent by the father with one or both children. 

5. There was a very clear recommendation to the court from both the Independent Children’s Lawyer and the Family Consultant to the effect that there should be only day time fortnightly time spent by the father with both children.  The father has a substantial time consuming job, and works six days a week with only Sunday available to share with his children.  The father does pay meaningful child support, and I indicated to all counsel that there would not be an order made jeopardising the employment of the father.  That, therefore, meant that any time to be spent by him with his children would be on a Sunday.  I initially proposed from 9.00 a.m. until 5.30 p.m., but the father requested, to the benefit of the boys and for travelling arrangements, that his time conclude at 5.00 p.m. 

6. I have assessed the primary and the additional considerations within section 60CC of the Family Law Act 1975 (as amended), and it is important to give validity to the report of the Family Consultant, to the wishes of the children, and to balance all of their very particular and special needs. On that basis, and after some lengthy discussion with the parties, I have discharged previous orders as to time spent arrangements, and will substitute each alternate Sunday from 9.00 until 5.00 (inclusive) commencing 3 January 2010.

7. I propose to make a separate order for Boxing Day in this year.  I would encourage meaningful electronic communication by telephone or otherwise, but that is a matter for the parties to endeavour to organise through the independent children’s lawyer or the generous services of Mr A. 

8. This matter, unfortunately, remains heading towards a defended hearing.  I have floated in discussion with both parties that a sensible outcome, and, indeed, a realistic approach to the issue of parental responsibility may be, and without any finding, a continuation of the shared parenting responsibility, but limiting that by way of a qualification that matters of health and education be excluded from any shared basis and be solely vested upon the mother.  That would be my preliminary view, and I have indicated that to the parties and solicitors so that matter can be reflected upon prior to the further hearing, which, at least, will minimise then the issues before the court and the cost to the community who are funding both the mother and the Independent Children’s Lawyer.

9. As to future time to be spent, it is clear that the issue of overnight and holiday, or other related time spent issues will loom large and are important to the children, and require further lengthy consideration from the Family Consultant and the Independent Children’s Lawyer.  I have directed an updated family report, though not in the detail of the current report, but primarily focusing upon the ongoing special needs and interests of both children, how these orders pronounced today have operated to their benefit, or otherwise, and their continuing wishes, and the observations of the professionals at changeover, together with any other matter of relevance or importance to the experienced Family Consultant preparing his updated report.

10. It is appropriate to take time to acknowledge the significant effort and time which already has been committed to this matter by Mr A with a very detailed and considered report today.  And, whilst not final, and subject to ongoing change and variation, it is a substantial document to which I have attached considerable weight and importance this day. 

11. I have endeavoured to limit the issues in the defended hearing.  It does seem that there is a level of acceptance of the health and education issues of both children, and they are not necessarily matters that should be the subject of any real argument or submission at the defended hearing.  Ultimately, this case is unfortunately about two parents who have little or no communication with each other or about the children, and how their children, with their particular disabilities, can best be assisted and managed through their parental and life issues. 

12. I encourage the father to obtain some legal advice before the final hearing, at least as to the legal issues of, and associated with, parental responsibility, and the best interests of the children.  Otherwise, I accept that he will likely appear for himself and do the best he can, but he must understand that I intend there to be final orders at the next defended hearing, and that this matter will then be concluded in this court and out of the court system.  It already has had a lengthy life before the court, and is in a box file covering the many years of orders and contests.  There is a point where finality is required, and that point in time is fast approaching.  In any event, the children are now 14 and a half years of age and 12 years of age, and they will, in the fullness of time, be beyond the immediate jurisdiction of this court simply on the basis of their age. 

13. I have allocated a mention of this matter on 10 May, and permitted the father to attend by telephone provided he is fully briefed and conversant with issues to be discussed, and is in an appropriate venue for that to be a meaningful and uninterrupted discussion.  I will have these very brief reasons transcribed.  I emphasise that my variation of past court orders today is done exclusively on the basis of the best interests of the children, and progressing this matter in the view of the meaningful recommendations that were before the court.  A copy of this transcript should be provided to Mr A.  I otherwise will pronounce orders that will be incorporated with these limited and ex tempore reasons. 

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: