Trickett and Giannopoulos

[2007] FamCA 630

FAMILY COURT OF AUSTRALIA

TRICKETT & GIANNOPOULOS [2007] FamCA 630

FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of a child - Interim

APPLICANT: MR TRICKETT

RESPONDENT: MS GIANNOPOULOS

INTERVENOR: Mr G

INDEPENDENT CHILDREN’S LAWYER: SUE MACGREGOR

FILE NUMBER: MLC 2473 of 2007

DATE DELIVERED: 13 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 13 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

COUNSEL FOR THE RESPONDENT: Mr J.R. Werner

COUNSEL FOR THE INTERVENOR: Ms M. Baczynski

SOLICITOR FOR THE INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1. That paragraphs 3(a) and 5 of the orders made 26 September 2005 shall be varied so that until further order the child, S, born … June 2000 (“[S]”) shall spend time with the applicant father:

   a.During school terms each alternate week-end from after school on the Friday until the commencement of school on the Monday commencing 15 June 2007;

   b.During school terms each alternate Wednesday from after school until the commencement of school on the Thursday commencing 20 June 2007;

   c.For one half of all school holidays as the applicant father and the respondent mother may agree and in default of agreement, the first half from 5.00pm on the last day of term until 5.00pm on the middle day of the holidays; and

   d.Such other times as the applicant father and the respondent mother may agree;

   e.and otherwise the orders shall continue in full force and effect.

2. That until further order:

   a.The applicant father shall collect S from school where appropriate or from the home of the maternal grandmother where appropriate at the commencement of periods of time to be spent with the applicant father;

   b.The applicant father shall return the child S to school on:

   i.Monday mornings after week-end periods spent with him;

   ii.Thursday mornings after Wednesday nights spent with him; and

   c.Save as provided in 2(b) the applicant father shall return S to the home of the maternal grandmother as the conclusion of periods of time spent with the applicant father.

3. That until further order the respondent mother and the secondnamed respondent shall attend such agency as the Independent Children’s Lawyer may recommend and seek assistance in relation to parenting, anger management, domestic violence and discipline of children, and for the purposes of such assistance:

   a.The Independent Children’s Lawyer shall ensure that the agency is provided with a copy of the report of Dr K dated 7 June 2007; and

   b.The respondent mother and the secondnamed respondent shall authorise such agency to advise the Independent Children’s Lawyer from time to time of their progress;

   c.provided always that the cost of such assistance is shared between the applicant father, the respondent mother and the secondnamed respondent Mr G.

4. That the parties shall attend a Priority List before Mushin J on 18 July 2007 at 9.30am for the applicant father to apply for a priority hearing.

5. That pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2473  of 2007

MR TRICKETT

Applicant

And

MS GIANNOPOULOS

Respondent

REASONS FOR JUDGMENT

1. This interim hearing is about seven-year-old S and 10-year-old J. 

2. S is the son of the applicant father and respondent mother.  He lives with his mother and regularly sees his father.  Pending the contested hearing in which the father seeks that S reside with him, he is today seeking to extend the time that S spends with him, and ultimately in the course of argument the major orders in relation to how that should be structured have been agreed.

3. J is the daughter of the mother and Mr G.  She lived in the household of her mother and father while they were cohabiting between 1999 and 2003.  During that time she was being raised by the father as his daughter.  Mr G was not on the scene.  After separating from the father, the mother resumed her relationship with Mr G. 

4. In the primary proceedings the applicant father seeks to spend time with J.  That is hotly contested, the mother and Mr G saying that it should not occur.  Today he is seeking interim orders that he have J with him when S is with him on alternate Friday nights, overnight.  The mother and Mr G say it should not occur.  The Independent Children’s Lawyer says that J could see the applicant father for a few hours at the start of the alternate weekend time with S, although the ICL concedes some concerns about orders at this point. 

5. I agree with the submissions for the mother and Mr G.  I bear in mind the father has not lived with J for some four years while J has been living with her father and mother.  On any view, he has not seen a lot of J in the four years.  There is a very significant dispute as to how much time they have spent together, but even on his account, although he says he was seeing J for some periods, he has primarily emphasised that he saw her at the time when he picked up S and when he dropped S back to the maternal grandmother's home. 

6. Previous proceedings between the father and mother culminated in consent orders in October 2005.  It seems that the father was not seeking orders in relation to J.  When the final orders were made they were only in relation to S. 

7. There is now an issue as to whether or not J should spend time with the father.  Dr K has written a family report.  He has referred to his concerns that J is under the influence of her mother and father when she expresses the wish not to see the applicant father, and he recommends time between J and the father.  However, Dr K does not appear to support that recommendation with any claim that there is an urgency about the child seeing the father,  I am sympathetic to what Mr Wilson for the father has said, that there is likely to be a significant passage of time until trial, and any relationship between J and the father could drift further.  However, I would be buying into only a small part of this dispute and I would be entering dangerous territory in pre-empting the very issue that needs to be determined at trial, by ordering that there be such time spent between J and the applicant father. 

8. I am particularly concerned when I hear of the issues in the household between the mother and Mr G and the fragilities in that relationship, there is the potential for tension in that household arising out of J going to see the father, and on balance, I am not prepared to put her best interests at risk by having that occur when I am not able to hear the entirety of the evidence and explore the detail that is required before determining the very issue that is at the heart of the contested case.

9. I am not going to order any contact or time between J and the father at this stage.  I am not going to order that he must not see her, so that if he does overlap with her in terms of changeovers that is absolutely fine. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  13 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as TRICKETT & GIANNOPOULOS