Tanner and Tanner

[2009] FamCA 101

FAMILY COURT OF AUSTRALIA

TANNER & TANNER [2009] FamCA 101

FAMILY LAW  -  CHILDREN  -  interim orders  -  mother’s psychiatric health  -  case guardian still involved  -  management of proceedings

Family Law Act 1975 (Cth)

HUSBAND: Mr Tanner

WIFE: Ms Tanner (by her Case Guardian Mrs Smith)

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1888 of 2005

DATE DELIVERED: 11 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 11 February, 2009

REPRESENTATION

THE HUSBAND: In person

SOLICITOR FOR THE RESPONDENT:

Ms. Elsum,

Forte Family Lawyers

INDEPENDENT CHILDREN’S LAWYER

Ms. Jenkins

Victoria Legal Aid

Orders

1. That until further order the wife spend supervised time with the child of the marriage J born … September, 2001 as agreed between the husband and the wife’s Case Guardian.

2. That the wife have leave to file an amended response  PROVIDED THAT  if in that amended response she seeks any unsupervised time with J, an affidavit sworn or affirmed by her treating psychiatrist be filed and served with the amended response in which the psychiatrist confirms that, in his or her opinion, the wife has the capacity and is well enough to spend unsupervised time with J, and sets out any limitations he or she believes should apply to time the wife spends with J.

3. That within fourteen days of being served with an amended response, the husband file and serve an amended application. 

4. That all extant applications be otherwise adjourned to 10:00 am. on 28 May, 2009. 

5. That there be general liberty to apply on notice to the other parties. 

6. That the reasons for judgment this day be transcribed and copies made available to the parties. 

7. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

8. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1888 of 2005

MR TANNER

Husband

And

MS TANNER

Wife, by her Case Guardian, MRS SMITH

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT  

1. At this time, the case concerns the orders that should be made for the time the mother is to spend with the parties' youngest son, J, who was born in September 2001.  I will not detail the history of the matter, save to say that applications for financial and parenting orders were listed before me in March 2008.  At that time, the parties resolved the parenting applications.  The wife appeared in that hearing through a case guardian, being her mother.  I heard contested property applications and made final property orders on 24 April 2008. 

2. Soon after that, the mother was involved in an accident when the car she was driving hit a pole, with J in the back seat.  Fortunately, J’s injuries were not as severe as initially envisaged, and it seems he has made a good recovery and is thriving in his father's care.

3. The mother has been psychiatrically unwell for a long time.  It appears her condition deteriorated after the accident and the medical evidence before the court in May 2008 did not support orders providing for her to spend any unsupervised time with J.  As her solicitor has advised, she did file an amended response on 29 May 2008.  The words, "to an application for final orders" were crossed out and "in a case" written above them, but nothing turns on that.  I accept that she has a live application before the court, albeit one she seeks to amend. 

4. Since the accident the mother has been spending time with J.  Initially this occurred weekly.  I am told that more recently it has been fortnightly.  That time is supervised.  She has been seeing the older children, S, who was born in February 1994, and E, who was born in August 1990, by arrangement with them, on occasions.  E is now 18 and beyond the jurisdiction of the court.  From what the father has told me today, S has settled since the parenting orders were made which is very good news and must be a source of comfort to both parents. 

5. J is doing well.  He is at a new school.  His father has moved, as envisaged in the earlier proceedings, and the family unit in the new home is thriving.  I had suggested that the most practical way to move forward might be to make an order that, until further order, J spend such supervised time with his mother as agreed between the father and the case guardian, or other members of the mother's family, and otherwise dismiss the applications with a right of reinstatement. 

6. The solicitor for the mother has made it clear that the mother wants to file an amended response seeking the phasing in of unsupervised time with J.  She concedes that such an application would be dependent on updated medical evidence supporting unsupervised time.  The mother is still represented by a case guardian, which is itself an indication of the difficulties she continues to face at this time. 

7. Whilst I am keen to get the pressure of this litigation off the parties' shoulders, and the evidence before me in the previous trial supported a finding that the father was behaving responsibly in endeavouring to balance the importance of the children spending time with their mother, with the importance of protecting them from physical or psychological harm, the mother is entitled to press her application and the court cannot stand in the way of that. 

8. I propose to order that the mother have leave to file an amended response.  If in that response she seeks any unsupervised time with J, at the same time she is to file and serve an affidavit of her treating psychiatrist confirming that, in the opinion of the treating psychiatrist, the wife is well enough to have unsupervised time with J, and setting out any limitations the treating psychiatrist thinks should apply to any time the mother spends with J. 

9. Within 14 days of being served with that response, the father can file and serve an amended application.  These are amended documents so no fees will attach to them.  I appreciate it may seem odd to the father to be asked to file an amended application, when he is responding to orders sought by the mother, but that is the way the proceedings have panned out.  The father is effectively the respondent to an application brought by J’s mother.   

10. I will adjourn the case until 28 May.  I appreciate that is some time away.  I am out of the registry from 8 April until 22 May.  In my view, it is better for J and for the parties that the case is managed by one judge, if that is possible.  It is a case in which some knowledge of the background and some knowledge of previous judicial findings is of assistance.  If an urgent application is necessary when I am absent, it can be listed and heard before another judicial officer.  

11. I will certify for solicitors appearing as counsel and grant liberty to apply, on notice.  Until further order, J is to spend supervised time with the mother, as agreed between the father and the mother's case guardian.  My reasons for judgment will be transcribed and will be on the file if an application is made when I am unavailable.    

I certify that the preceding
11  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.