Whelan and Bates

[2010] FamCA 852

FAMILY COURT OF AUSTRALIA

WHELAN & BATES [2010] FamCA 852

FAMILY LAW – PRACTICE AND PROCEDURE – Case management orders – Children and property issues

APPLICANT: Ms Whelan

RESPONDENT: Mr Bates

FILE NUMBER: MLC 2632 of 2009

DATE DELIVERED: 20 September 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 20 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hoult

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Mr Weil

SOLICITOR FOR THE RESPONDENT: Susan Snyder

Orders

1. ALL extant applications be listed for case management and further mention before Young J on Monday 14 February 2011 at 10:00 a.m.

2. THAT within 14 days the wife file both her financial and childrens questionnaire.

3. THAT a Family Report be prepared pursuant to s62(G) of the Family Law Act 1975 (Cth) and, if possible, such report be prepared by Mr A, and he is to confer with the parties, the three children of the marriage and any other relevant adult on 9 December 2010 at 9:30 a.m. and, for the purposes of such Report, the following matters be considered:

   ·The attitude and capacity of each of the parents to the responsibilities of parenthood;

   ·the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between each of the children and the other parent;

   ·the benefit to each of the children of having a meaningful relationship with both parents;

   ·any views expressed by the children and the weight which should be given to such views;

   ·the extended family and personal relationships of the parents;

   ·any other matter which in the best interests of the children are and should be considered.

4. SUCH Family Report is to be prepared in written form and to be available to the Court on or before 7 February 2011.

5. THAT prior to 30 November 2010 the husband is to :

   a)Undertake and complete a Post Separation Parenting Course; and

   b)attend upon a psychiatrist for a written report and assessment to be provided as to his state of mental health and any and all related issues which may impact on his time spent and parental role with the children.

6. I direct that both the husband and wife personally attend at Court with their practitioners on the adjourned hearing date.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2632 of 2009

MS WHELAN

Applicant

And

MR BATES

Respondent

REASONS FOR JUDGMENT

1. In the matter of Whelan & Bates, Mr Holt of counsel appeared for the wife, Mr Wheel of counsel for the husband.  The matter was listed before me as a first day hearing. The reality is that there must be an updated family welfare report prepared on all issues of and concerning the three children.  Those children are aged twelve, eleven and eight.  There are currently orders made by consent by the Senior Registrar on 14 December 2009 which detail the arrangements between parents for time spent with and living arrangements.  Those orders are not sought to be varied prior to the preparation of a further detailed family report and mentioned before me on 14 February of next year at 10 am.

2. The amended applications for orders sought are before me, and on children's issues the primary matter of dispute is that the wife seeks a sole parental order, the husband an equal shared, joint responsibility order.  The wife would have the children spend time with the husband, whereas the husband would have the children live with each of the parents on a living arrangement.  Other than that, there will be issues as to the actual days and weeks that each child should spend with their parents during school time and otherwise at holiday time.

3. I have raised the issue of an independent children's lawyer and both counsel are of the expressed opinion that such an appointment would not otherwise assist the court and that they are content for their case to be presented to the court with the assistance of a family report.  On that basis, I will not make any order for the appointment of an independent children's lawyer.  I will, however, direct that an updated family report be prepared by Mr A, who has previously prepared a brief issues assessment and which was before the Senior Registrar when his orders were last made by consent.

4. In particular, I will request Mr A to confer with the family, including the three children, and concentrate his recommendations upon the best interests of the children, and in particular, as to:

   (i)Whether it is in the best interests of the children for there to be a sole parent or equal shared parent responsibility order;

   (ii)the attitude and capacity of both parents;

   (iii)the relationship between each of the parents and their willingness and ability to facilitate and encourage a close relationship between each of the children and the other parent;

   (iv)the extended family relationships;

   (v)the benefit of children having a meaningful relationship with both parents;

   (vi)other particular issues which are additional considerations within section 60CC(3) of the Act such as either the family consultant may deem to be of importance or either party may raise as particular issues worthy of close examination.

5. The financial matters are otherwise before the court and I will have an updated valuation of the G home available at the adjourned date.  I will require the wife to file her property and financial questionnaire within 14 days.  I will not at this stage require detailed affidavits and a financial statement to be filed, more likely, on 14 February 2011 those orders will be made so that a trial can commence thereafter.  I give no assurances as to a trial date. That will simply be what is available as at 14 February of next year.  I require the husband and wife personally to be in court on 14 February.

I certify that the preceding five
(5) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young delivered on
20 September 2010

Associate: ……………………………………………………………

Date:  …………………………………………………………………