Watson and Morton

[2008] FamCA 213

FAMILY COURT OF AUSTRALIA

WATSON & MORTON [2008] FamCA 213

FAMILY LAW  -  CHILDREN  -  parenting – application for leave to file – amendment of application – preparation of family report  -  hearing adjourned.

Family Law Act 1975 (Cth)

HUSBAND: MR Watson

WIFE: Ms Morton

FILE NUMBER: MLC 7529 of 2007

DATE DELIVERED: 7 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 7 February, 2008

REPRESENTATION

THE HUSBAND: In person

Orders

1. That the husband have leave to amend the application filed by him on 30 January, 2008 to seek the following orders :

(1)That the husband have leave to file an application seeking the following orders :

(a)That an independent children’s lawyer be appointed to represent the best interests of the children of the marriage [J] born […] July, 1994 and [K] born […] September, 1996. 

(b)That the father spend two periods of time with the children in a suitable environment for the purpose of saying goodbye (taking into account the evidence of the husband’s terminal illness) and the length of such time and the location of the visits be in the absolute discretion of the independent children’s lawyer. 

(c)That pursuant to s.62G(2) of the Family Law Act 1975 [the children] be seen by a family consultant nominated by the manager of Child Dispute Services in the Melbourne registry of the Court and a report be prepared of the children’s views about spending time with the father as sought in paragraph (1)(b) hereof, and generally, and further consideration of this application for leave be deferred pending release of that report.

(d)Such other orders as the Court finds appropriate. 

(e)That a copy of this application for leave be served by the Court upon the wife, but she be relieved of any obligation to file a response or affidavits, pending further order. 

(2)Such other orders as the Court finds appropriate.

1. That pursuant to s.68L(2) of the Family Law Act 1975 the interests of the children J born … July, 1994 and K born … September, 1996 be independently represented by a lawyer AND IT IS REQUESTED  that Victoria Legal Aid arrange such independent representation.

1. That forthwith upon appointment by Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

1. That on the request of the independent children’s lawyer the Court provide her/him with copies of the application and affidavit filed by the husband on 30 January, 2008.

1. That pursuant to s.62G(2) of the Family Law Act 1975 the children be seen by a family consultant nominated by the manager of Child Dispute Services in the Melbourne registry of the Court and a report be prepared of the children’s views about spending time with the father as sought in paragraph (1)(b) of the orders set out in paragraph (1) hereof, and generally, and further consideration of this application for leave be deferred pending release of that report.

1. That it be in the absolute discretion of the family consultant as to whether she/he speaks or meets with the husband and wife, and in the event she/he does meet with them, the meeting with the wife be in Mildura when the family consultant is there to meet with the children and the meeting with the husband be in Melbourne at a time arranged with him. 

1. That the further hearing of the application referred to in paragraph (1) hereof be adjourned to 10:00 am. on 4 March, 2008. 

1. That the husband have leave to appear by telephone on the adjourned date, and if he seeks to do so, he advise the Court of this no later than 48 hours prior to the adjourned date, and advise a landline telephone number on which he can be contacted. 

1. That the independent children’s lawyer have leave to appear by telephone on the adjourned date.

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

1. That the Family Report be released by 28 February, 2008. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7529 of 2007

MR WATSON

Husband

And

MS MORTON

Wife

REASONS FOR JUDGMENT

1. This is an ex-parte application, filed by the father on 30 January 2008 in which he seeks to spend time with the youngest two children of his marriage, being J, born in July 1994 and K, born in September 1996.  He seeks to spend time with them on each alternate weekend, and at such other time as agreed by the independent children's lawyer. 

1. I do not propose to rehearse the long history of this matter, save to say this.  The children are the youngest of the parties’ four surviving children.  Their older siblings are A, born in August 1990 and E, born in August 1992.  A will be 18 in August this year;  E will be 16 in August.  The parties separated in May 1997 and proceedings were initially instituted in August 1997.  There have been many applications since. 

1. On 13 October 2003 an order was made, under s.118 of the Family Law Act 1975, pursuant to which the father requires leave to bring any application for orders in respect of any of the children. In the last eight months a number of applications for leave have been before the court. Young J considered an application filed on 3 July, 2007 in September 2007, and dismissed it. In that application the father sought leave to file an application for “fifty-fifty parental responsibility in all aspects” and any other urgent orders the court thought appropriate. He supported the application with a lengthy affidavit sworn on 3 July 2007 and filed the same day, to which were annexed a number of affidavits sworn by the father and filed in earlier proceedings, including affidavits sworn on 20 November 2005, 2 January 2006 and 24 May 2006. A number of other documents were annexed to that affidavit and the father has referred to some of them today. There are notes of unsucessful attempts to use a changeover service in late 2005, references to a Full Court decision of 30 May 2007 (an appeal brought by the father was allowed, in part) and copies of a number of letters the father has sent his children, including a letter sent to A dated 31 May 2007.

1. In much of his material the father asserts that it has been 10 years since he has had any meaningful contact with his children.  The annexures to which I have referred make it clear that there have been some, albeit ultimately unsuccessful, attempts at arranging some contact between the father and his children in that period. 

1. The father appealed against the orders of Young J and I understand that appeal is listed for next Friday.  The father has indicated he may take certain steps in relation to that.  That is a matter entirely for him. 

1. Another application for leave was filed by the father on 26 November, 2007, supported by a short affidavit.  In that the father sought “constant company of all his teenage children, as they have the last 10 years to catch up on and the next 20 years to pack into a very small space”.  He noted that :

   Should the children's reluctance still be prevalent I am certain that a quiet talk with Guest J would soothe the matter. 

1. Annexed to the affidavit in support of this application was a letter from a medical practitioner, Dr. M, dated 24 October, 2007, from the Alfred Hospital.  Dr. M recorded that the father has a terminal illness and a life expectancy of perhaps a few months, rather than years.  Bennett J’s reasons in December refer to his potential life expectancy then as some seven to nine months. 

1. That application came before Bennett J on 13 December, 2007.  Her Honour dismissed the application, for reasons which were published in January 2008.  In the course of those reasons her Honour referred to a submission made by the independent children's lawyer.

1. At paragraph 33 Bennett J. referred to the transcript of the proceedings before her and certain statement made by Ms Martin, the independent children's lawyer.  Ms Martin said that if the father were prepared to amend his application to seek one or two visits from the younger two children for the purpose of saying goodbye in a suitable environment, she would ask that Bennett J adjourn her consideration of the matter going forward until the father made that amended application, and until the younger two children were assessed by Dr P, through Victoria Legal Aid. 

1. The father has given evidence of other health problems in earlier proceedings.  Today the father has been courteous and engaged in discussion with the court.  I have given him an opportunity to amend the application he filed on 30 January to seek orders as foreshadowed by Bennett J, as a potential way forward.  To that end he would seek that an independent children's lawyer be appointed, and that he have leave to file an application seeking two periods of time with the children, in a suitable environment, for the purpose of saying goodbye, (taking into account the evidence of his terminal illness).  The length of time and the location would be in the discretion of the independent children's lawyer.  The orders sought would include an order for a family report to be prepared by a family consultant, nominated by the manager in Melbourne, relating to the children's views about spending time with him as sought, and more generally.  Further consideration of his application for leave would be deferred, pending release of that report.  He would also seek such other orders as the court found appropriate.  While a copy of the application for leave would be provided by the court to the wife, she would be relieved of the obligation to file a response or affidavits, pending further order.

1. The father has made it clear that he would like a great deal more.  Faced with the prospect of dismissal of the application he filed on 30 January, which could have no hope of success, he sought to amend his application as described.  That oral application to amend the application is granted. 

1. The court then needs to consider whether it should grant leave now.  In my view it should not.  Before Bennett J, the independent children’s lawyer made very clear the reasons why any application in respect of the two older children should be dismissed, and not renewed.  This application does not relate to them.  The father has told me of some discussions with the ICL, as to whether J and K would like to see him, whether to say goodbye or, as he is confident, to have ongoing time with him in the time that is left to him.

1. Before Bennett J, the ICL spoke of the potential for a report by Dr P.  Dr P has been involved in the case on numerous occasions;  I say that, having read a number of earlier judgments.  He has been cross‑examined.  The father has been discreet in criticism of Dr P but he has said that he thought Ms. S (a family consultant then employed by the court) had a better grasp of the matters, when she saw the children at one point in the proceedings. 

1. Ms S no longer works with this court so is not available to prepare a report. However, in my view the court will be assisted by another family consultant of this court seeing the children, afresh. He or she will have access to material filed but will see the children with new eyes. J and K are old enough to be able to articulate their views and in my view, those views should be obtained prior to determining the father’s application for leave. To succeed, the father will have to establish, as required by order 11.05(4) of the Family Law Rules 2004, that he has a reasonable likelihood of success. He is confident he knows J and K’s views, despite having had very little to do with them for years. That should be tested prior to further consideration of the leave application.

1. I understand the father is sceptical of the mother’s capacity, or willingness, to support any orders that the court might make.  He fears that the older children will contaminate the younger.  The family consultant will have the capacity to speak with both parents and, if she sees this as a relevant matter, advert to it.

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

Dated the           day of            2008.

…………………………………………
Associate.