Voumard and Lauren

[2009] FamCA 236

FAMILY COURT OF AUSTRALIA

VOUMARD & LAUREN [2009] FamCA 236

FAMILY LAW – CHILDREN – Interim – LAT hearing – First day

Family Law Act 1975 (Cth)

APPLICANT: MS VOUMARD

RESPONDENT: MR LAUREN

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8461 of 2007

DATE DELIVERED: 17 MARCH 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 17 MARCH 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS MACGREGOR

SOLICITOR FOR THE APPLICANT: MACGREGOR SOLICITORS

COUNSEL FOR THE RESPONDENT: MRS PHELAN

SOLICITOR FOR THE RESPONDENT: NANCY BATTIATO

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR MULVANY

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: T.J. MULVANY & CO

ORDERS

IT IS ORDERED:

1. THAT paragraphs 3, 4, 5, 6, and 7 of the orders of this Court of 13 December 2007 be discharged.

2. THAT until further order the child N born … October 1999 (“the child”) live with the mother.

3. THAT until further order the child spend time and communicate with the father as follows:

   3.1from cessation of school Thursday 19 March 2009 until commencement of school Friday 20 March 2009;

   3.2on Wednesday 25 March and 1 April 2009 from cessation of school until commencement of school the following Thursday;

   3.3on … April 2009 (the father’s birthday) from 10.00 a.m. until 6.00 p.m.;

   3.4from 10.00 a.m. Saturday 18 April 2009 until 6.00 p.m. Sunday 19 April 2009 and each alternate school term weekend thereafter;

   3.5from cessation of school Wednesday 22 April 2009 until commencement of school the following Thursday and each alternate Wednesday thereafter during school term;

   3.6from 10.00 a.m. Monday 6 July 2009 until noon Friday 10 July 2009;

   3.7commencing Wednesday 15 July 2009 from cessation of school until commencement of school Thursday and each alternate Wednesday thereafter;

   3.8commencing Saturday 25 July 2009 at 10.00 a.m. until 6.00 p.m. the following Sunday and each alternate week thereafter;

   3.9such further or other times as shall be agreed;

   3.10the father be in substantial attendance at all times referred to in this Paragraph 3.

4. THAT the father be at liberty to telephone the child each Wednesday at 7.00 p.m. and the mother ensure that her phone is available at that time and each parent facilitate request by the child to speak to the other parent.

5. THAT the mother authorise the Principal or a person delegated by the Principal to provide to the father, if necessary at the father’s cost, copies of all school newsletters, reports, photograph forms and like material to the father, and the father, subject always to any direction of the Principal, be permitted to attend and participate in any functions or activities to which parents are customarily invited.

6. THAT the Independent Children’s Lawyer be at liberty to provide a copy of this order to, and discuss these proceedings with, the Principal or persons delegated by the Principal, of the child’s school.

7. THAT the mother furnish the father with all relevant details so that a duplicate pair of glasses may be obtained by the father.

8. THAT subject to available Medicare funding or if not available, VLA funding, the father attend upon Ms S, Psychologist or a similarly qualified person for assistance and thereafter the preparation of a comprehensive report to be filed in these proceedings such report to include issues and any concerns relevant to these proceedings, the father’s insight and parenting capacity and his attitude to fatherhood.

9. THAT pursuant to Section 65 L of the Family Law Act 1975 it is requested that the Director of Mediation, Melbourne, Registry of this Court, make Family Consultant Mr U available to assist in the supervision of these orders on a reportable basis.

10. THAT each parent keep the other fully informed as to their telephone numbers and residential addresses.

11. THAT all extant proceedings be adjourned to 5 August 2009 at 10.00 a.m. to be listed as a Less Adversarial Trial hearing before Young J.

12. THAT pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations that 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.

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 father and solicitors appearing as counsel for the mother and the Independent Children’s Lawyer

2. THAT the Ex Tempore Reasons this day be transcribed and placed upon the Court file and made available for the parties.

3. THAT a copy of this order be made available to the Family Consultant, Mr U.

THE COURT NOTES:

A.THAT neither parent was sworn in this day and no evidence was given on oath.

B.“Substantial attendance” does not require that the father forego night employment opportunities or a very short (not in excess of thirty minutes) absence from the home.

C.The mother and Ms R were present at Court this day and heard the Court’s comments on the expectations of their co-operation to preserve and enhance the relationship between the child N and Ms R’s sons.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8461 of 2007

MS VOUMARD

Applicant

And

MR LAUREN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Voumard & Lauren is before me as a first day Less Adversarial Hearing.  I have conducted the proceedings on the basis of frank discussions with counsel, with each of their clients seated at the bar table, and other interested adults in court.  The Family Consultant Mr U has been in court throughout the proceedings.  Ms McGregor solicitor appears for the mother, Ms Phelan of counsel appears for the father, and Mr Mulvany is the appointed Independent Children's Lawyer.

2. I have been given information on a somewhat related court proceedings in the matter of R which has now resolved and final orders have been made as to the children, L and M in that case.   Those two children are the sons of Ms R who is in a current relationship with the father Mr Lauren.  There are very specific orders, as were outlined to the court by Mr Mulvany, curtailing the time and relationship between the father and L and M.  I have not sighted the orders, but in due course it would be helpful if the Independent Children's Lawyer filed an affidavit annexing those orders, as they do have implications to this case.

3. In reality, there is a restraint on the father spending time with L and M other than in very particular and highly organised supervised circumstances.  That impacts upon the availability of his time to be with the child of this relationship, N, born in October 1999, and now nine years of age. 

4. The legal background of this matter was most recently documented in the orders of Senior Registrar FitzGibbon of 13 December 2007.  I have read those orders and there will be a need to vary, or more likely discharge, certain of those orders and make orders afresh for the father to spend time with and communicate to N.

5. The place of residence of the parties in the W area is a matter of convenience because it gives some flexibility to travel and other available dates and times for there to be interaction between father and son.  The other children, L and M, live in Melbourne and travel to W on alternate weekends and holiday time to be with their mother.  That makes more difficult the relationship, which is long-standing, between N and each of those other children.  That is one of the matters to be considered any interim outcome in the best interests of N.

6. As part of the Less Adversarial Hearing process, the parties have attended upon Mr U, Family Consultant, and I have been provided, as have all parties and legal practitioners, with a copy of his summary of issues prepared 27 February 2009.  That assessment was prepared upon a meeting with the parents and N and that level of contact is summarised at the commencement of the issues assessment. 

7. The document provides both a summary of the key issues and future directions.  The document highlights in very blunt terms the almost toxic relationship between the parents; their lack of trust and respect for each other, and in particular on page 5 of that report those matters are summarised.  What is there contained is the observation that there is absolutely no co-operation between parents whatsoever, no acknowledgment of the issues at hand, no preparedness to actually work together, a high level of distrust, and most importantly N’s time to spend  more time with his father has been totally discounted

8. There is a very particular background to the issues now concerning N.  Ms McGregor has highlighted, and I think it is common ground, that years ago there was a developing and workable relationship between parents and N was enjoying more regular time spent without significant court disputes and the on going level of mistrust.  Times have changed because of a particular incident and the interpretation by one or both parties of the circumstances and intent from that incident, but they are matters that I do not touch upon today.  Both parties clearly have different reports or interpretations of that matter.

9. The current arrangement has changed from what was ordered in December 2007 by the Senior Registrar.  The orders have progressed so that now N is effectively spending each alternate weekend 10.00 a.m. Saturday to 6.00 p.m. Sunday with his father.  There are, however, many concerns outlined by the mother, some of which may be well understood. 

10. Predominantly, there is a conflict between the time that N can or should spend with L and M, with whom he has a close and long-term relationship, or otherwise with his father.  The father does not have a free and available relationship to spend time with L and M when they are with their mother.  That has marked implications for the flexibility and the workability of any relationship for N.

11. I am somewhat uncertain about the particular day-to-day circumstances of the father from what I have read, but clearly he is endeavouring to work in the security industry and has employment on an alternate weekend, but seemingly not otherwise.  He has recently been undertaking a course of training to improve his work skills and availability.  I currently understand that he does not work Monday to Friday.  That gives an opportunity to tailor some arrangements for N around his time off work.

12. In the normal Less Adversarial Hearing, first day, the procedure may be to order a more detailed family report and other assisting reports to identify issues and increase the knowledge of the parties and the court by more and more paperwork, as helpful as that may be.  What I intend in this case is to put on hold any further report, but to retain the availability of Mr U, and I would think it appropriate that an order be drawn under section 65L to have Mr U supervise any time-spent arrangement that I make today.  That will give the parties, through their solicitors, the facility of ringing, in appropriate circumstances, Mr U.  I am careful not to compromise his independence and the fact that he will be delivering a further report to the court, in all probability, one day. 

13. What I am anxious to achieve for N is some ongoing arrangement where he spends more time with his father, has a level of flexibility to see L and M with the co-operation of his mother, and where the parents may grow to have a little more trust one in the other.  What I intend to order, and I will ask the Independent Children's Lawyer to draw orders now, is to provide for the scenario of N remaining living with his mother but spending time with the father on alternate weekends 10.00 a.m. Saturday to 6.00 p.m. Sunday inclusive.  That will be the weekend when L and M are not present at the father's family home and when he must absent himself from that home.

14. Additionally, each second Wednesday, in the other week, from after school until the commencement of school the following Thursday morning.  Additionally, I will provide one further period of holiday time in the June/July school holidays, in the other week when L and M are there 6, and subject to the father being in substantial attendance and not working.  That does not mean the father must be there full time, and certainly if he has the opportunity to work of an evening, that is reasonable.  That period will be from 10.00 a.m. from the Monday on one week of the holidays until 12.00 noon on the Friday.  That is, four nights overnight.  I will make no other holiday orders, as the matter will be relisted before me on 5 August 2009 at 10.00 a.m. as a continuation of the Less Adversarial Hearing.

15. I will require the father, and I would ask that an order be drawn, of encouraging Victorian Legal Aid to pay, or otherwise for a doctor's referral and Medicare basis for payment, for a psychologist, Ms S, Psychologist of W, or another like-trained person, to see the father over the next few months for various counselling sessions and to provide a somewhat more helpful and comprehensive report on his attitude, concerns, capacity, and related fatherhood issues, and generally as to his medical wellbeing, emotional position.

16. I will direct that the parents exchange mobile telephone numbers and keep each other informed of their current residential address and any change in telephone numbers.  I am inclined not to make any further order for preparation of affidavits or other issues at this stage, but rather to await the implementation of these orders and any developments therefrom.

17. I, of course, make these orders on the basis of presenting some options for N and trying to act in his best interests and establish a better relationship with his father.  I am mindful that the mother has said that she will on occasions ensure that N has time with L and M, and the reality of that is that when L and M are in the W area, on their weekend or holidays, there is a relationship between adults such as N can go and play with them or they could come over and play with N at N’s home.  I make no orders about that, but there must be able to be some level of discussion and arrangement in that regard.  Again, the flexibility of that will be outlined on the return hearing date.  I do not know all of the matters in issue in the R case and I am not trying to in any way cut across orders of that case. 

18. There will need be the usual 65DA(2) and 62B orders plus fact sheet.  I carefully record in these reasons that the parties have not been sworn or affirmed and are not on oath.  In the limited time available today, I have endeavoured to discuss with all counsel, on the basis that all parties were represented in this case, possible outcomes and to try and move this matter forward.  Time will tell whether there is any level of success.

19. The case-management order of the court as to be drafted by counsel will provide for all extant applications to be adjourned to 5 August at 10.00 a.m. before me and I will ask Mr U to note that date his availability to be in court on that day. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: