Van Kearn and Rose

[2007] FamCA 1731

FAMILY COURT OF AUSTRALIA

VAN KEARN & ROSE [2007] FamCA 1731

FAMILY LAW – CHILDREN – Child related proceedings – Independent Children's Lawyer – With whom a child lives – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Van Kearn

RESPONDENT: Ms Rose

FILE NUMBER: MLC 716 of 2007

DATE DELIVERED: 25 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 25 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cantwell

SOLICITOR FOR THE APPLICANT: Keating Avery

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT

1. All applications be adjourned for further hearing in the Registrar’s Duty List at 9:45am on 27 February 2007.

2. Both parties file and serve any further affidavit on which they propose to rely at the adjourned hearing no later than 4:00pm on 20 February 2007 and thereafter no affidavit be filed in respect of the said applications save with the leave of the Senior Registrar first had and obtained.

3. Pursuant to Section 68L the Family Law Act 1975 the children D  born … January 2003 and L born … June 2001 be represented by an Independent Children’s Lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

4. Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

5. Within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

6. Until the said adjourned hearing the children live with the parties as following:

   (a)       from this day until midday on Sunday 28^th January 2007 with the father;

   (b)from midday on Sunday 28^th January 2007 to midday on 4^th February 2007 with the mother;

   (c)from midday on 4^th February 2007 to midday on 11^th February  with the father;

   (d)from midday on 11^th February 2007 to midday on 18^th February 2007  with the mother;

   (e)from midday on 18^th February 2007 to midday on 25^th February 2007 with the father; and

   (f)from midday on 25^th February 2007 until the adjourned hearing or further order with the mother.

7. For the purposes for paragraph 6 hereof the transport of the children shall be as follows:

   (a)by the father to the mother on 28^th January 2007, 11^th February 2007 and 25^th February 2007;

   (b)       by the mother to the father on 4^th February 2007 and 18^th February 2007;

   (c)during any school and kindergarten period during which the children live with the father by or on behalf of the father to and from the children’s school and kindergarten ; and

   (d)       as may be otherwise agreed.

8. Until the adjourned date or further order the mother be and is hereby authorised to continue with the enrolment of the children at school and kindergarten as presently arranged by her.

9. Until the adjourned date or further order the mother be and is hereby restrained by herself, her servants and agents from removing or attempting to remove either of the said children’s place of living outside of a radius of 15 kilometres from her present residence.

10. Until the adjourned date or further order both parties be and are hereby restrained by themselves, their servants or agents from consuming any drug of addiction save by prescription of a legally qualified medical practitioner or exposing the children directly or indirectly to any such drug.

11. Until the adjourned date or further order both parties be restrained from consuming any alcohol to excess during any time that the children or either of them are in their care.

12. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 716 of 2007

MR VAN KEARN  

Applicant

And

MS ROSE  

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for interim residence relating to the children of the parties born in June 2001 and January 2003.  The father has been represented by Counsel; the mother has appeared for herself.

2. Each of the parties has filed an application on forms 1 and 2, and has sworn an affidavit in support of their respective cases.  The disparities in allegations of fact are vast.  There are allegations of violence, alcohol use, drug use and like matters.  As usual in interim matters such as this, this has been conducted on the basis of the affidavit material and I am unable to make any decision with respect to the correctness of the different versions. 

3. The parties, it would appear, commenced a relationship in 1999 and separated probably in the early part of 2004, so they have separated for around about three years.  It is unnecessary to be precise.  It is common ground that in the entirety of that period the children have been in the care of the mother; substantially more than the care of the father.  But in the last 12 to 18 months the proportions of care seem to have been closer to equal.

4. The best that I can do with the competing facts suggests to me that there has been some higher proportion to the mother in that regard but in the circumstances it is not necessary to make any finding and, as I have said, I cannot do so.  The parties live about 20 to 25 minutes' drive from each other in northern Victoria.  The father is in employment as a tradesman and the mother is not in employment outside the home. 

5. The father would appear to be significantly assisted by his mother in the care of the children.  It is common ground that, in the last 10 days or so, the younger child has been living with the mother and the older child has been living with the father.  Neither child has seen the other parent.  With all of the disputed facts there is one thing that is abundantly clear, that is, that the war raging between the father and the mother is destroying the children.  That is something which may come to visit the parents at some later stage.

6. If there is one thing that is abundantly clear from all the research it is that fighting parents make for troubled children.  If that is what the parents want to do with the children then do not let them say that they have not been warned.  It is quite clear that given the dispute between the parents it is necessary to appoint a lawyer for the children so that there might be some better analysis of what is going on in this family.  I accordingly propose appointing an Independent Children's Lawyer and that will require an adjournment.

7. The adjournment will be to the registrar's duty list on 27 February 2007, on which date further consideration will be given to the question of the children's living circumstances.  In the meantime the children have been enrolled by each party, without consultation with the other, in schools in their immediate vicinity.  That is just one example of the consequences of the dispute between the parties. 

8. I have to decide on their living arrangements between now and the adjourned date and I also have to decide on which school they will go to.  It is not acceptable that they should go to two different schools.  I have decided that until the adjourned date the children will live with the parties on a week and week-about basis.  They will live with the father from now until Sunday, and there will then be a changeover every Sunday morning from then until the adjourned dated.

9. Because the mother is able to give them primary care herself and the father is in paid employment outside the home I have decided that it is appropriate that they should go to school in the mother's town rather than that of the father.  School starts on 31 January 2007 and that is the basis on which I have decided that the children should have a few days with the father before school starts and the mother will then be able to settle them down to school next week.

10. It will mean the father will have to bring them to school in the mother's town each morning during the week they are with him, and collect them in the afternoon.  If he is unable to do it somebody is going to need to do it for him.  In the event that it is not able to be done the children would remain with the mother but I would be confident that that is not going to occur.

11. I put that greater onus onto the father because he is in paid employment and the mother is not.  While it would appear that the mother may have difficulties in a Local Court in her area with regard to her motor vehicle licence, at this stage she assures me that she has a licence and I will require that when the children go from her place to the father's place on the Sundays that she will do the transport.  Likewise on the Sundays when they come from the father's place to the mother's place the father will do the transport.

12. There is a suggestion that the mother intends to move to live in New South Wales.  The mother denies that but, out of an abundance of caution, I will restrain her from doing so. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin.

Associate

Date: May 2009