Wyllie and Wyllie

[2012] FamCA 803

FAMILY COURT OF AUSTRALIA

WYLLIE & WYLLIE [2012] FamCA 803

FAMILY LAW – INTERIM PARENTING – Interim Consent Orders for child to spend time with both parents continued until next hearing date – Allegations of family violence of a sexual abuse nature – Allegations as to the mother’s mental health – Issue as to mother’s compliance with and understanding of Consent Orders – Further Consent Orders made for child to be assessed by a paediatrician

APPLICANT: Mr Wyllie

RESPONDENT: Ms Wyllie

FILE NUMBER: PAC 2949 of 2012

DATE DELIVERED: 8 August 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 8 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Paraska

SOLICITOR FOR THE APPLICANT: Ms Donnelly-Coode
Coode & Corry

SOLICITOR FOR THE RESPONDENT: Ms McCrohan
Rachel Stubbs & Associates

Orders

1. That I fix this matter for an interim hearing, before myself, not before 2.15 pm on Monday 17 September 2012 in the Duty List.

2. I note that the Orders of 12 July 2012 are to continue with the child, Z born … July 2010, being returned to the father this Friday 10 August 2012.  In the event that the child is not returned pursuant to this order I would anticipate that the matter shall be back before me on Monday 13 August 2012.

3. That the document marked Consent Orders shall become Court’s Exhibit 1 in today’s proceedings.

4. That by consent, orders are made in accordance with paragraphs 1 in its sub-paragraphs, 4 and 5 of Court’s Exhibit 1, copy annexed hereto, and noting that order 5 lists this matter for an interim hearing on 17 September 2012 not before 2.15pm.

5. That leave is granted to each of the parties to issue up to eight (8) further subpoena without further leave provided such subpoena are made returnable and inspected prior to 17 September 2012.

6. That the legal representatives shall approach the counselling section of this Court, today if possible, to arrange appointments for the parties to attend for counselling. I note that there has already been a report prepared by a counsellor. 

7. That liberty is granted to either party to restore the matter to the list by arrangement with my Associate with no minimum period of notice required in the event of any difficulty.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wyllie & Wyllie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2949 of 2012

Mr Wyllie

Applicant Father

And

Ms Wyllie

Respondent Mother

REASONS FOR JUDGMENT

Introduction

1. This matter comes before me today as an urgent transfer from Federal Magistrate Donald.  The matter concerns the arrangements that are to be put in place in respect of the child, Z, who was born in July 2010 and who is the parties’ only child. 

2. This matter came before the Federal Magistrates Court on an urgent basis on 12 July 2012.  At that stage, the mother had taken the child from the father’s parents’ home and had been unable to be located or contacted for a period of time.  The application was for a recovery order and return of the child.

3. On that occasion, that is 12 July 2012, interim Orders were entered into by consent between the father, who was represented a lawyer, and by the mother, who had the advice of Ms Mary Gleeson, then the duty solicitor at this Court.  Those interim Consent Orders are detailed.  They make provision, in effect, for the parties to share time with the child. 

4. The mother it then appears, in the face of those Orders, decided that it was proper and appropriate for her to retain the child on the 3^rd of August, a date upon which the child was to go to spend time with the father.

Discussion

1. There are two matters that cause me real concern.  The first is that the mother now indicates that she entered into those interim Consent Orders as a matter of desperation because it was the only way she could get to see her child.  She indicates, as I understand it, that her understanding of the Orders was less than perfect.  I would record here that my own knowledge of the Duty Solicitor Scheme is that the duty solicitor would be at pains to indicate the nature and effect of the proposed orders and the requirements imposed upon each of the parties as a result of those proposed orders.

2. Next, the mother decided to retain the child and there was then some enquiry as to how the matter would best be brought back before the Court.  My concern is that the mother does not have an appreciation of the obligations imposed upon her by Court orders, nor of the fact that she simply cannot do that which she considers to be appropriate. 

3. This is going to be a difficult and, I suspect, painful matter for both parties.

4. The mother makes allegations of acts on the part of the father that could only be described as highly sexually abusive.  The father, in turn, makes reference to and relies upon the mother’s difficulties with her mental health.  Both of these aspects of the matter will need be investigated and further explored. 

5. In the meantime, and notwithstanding the efforts of her legal representative, who has with great respect done her very best in a very difficult situation, I am not persuaded that I should in any way interfere with the agreement that was entered into by the parties and which became the Orders of the Federal Magistrates Court of 12 July 2012.

6. Accordingly, I note that those Orders are to continue with the child being returned to the father this Friday.  In the event that is not done, I would anticipate the matter would be back before me on the Monday, and I will grant leave to either party to restore the matter to the list upon giving no minimum period of notice, but by arrangement with my Associate. 

7. The document marked Consent Orders will become Court’s Exhibit 1 in today’s proceedings.  I make orders in accordance with paragraphs 1 in its subparagraphs, 4 and 5 of that document, noting that order 5 lists this matter for interim hearing on 17 September 2012.  I mark the matter not before 2.15 pm on that day. 

8. I grant leave to each of the parties to issue up to eight further subpoena without further leave of this Court provided that such subpoena are made returnable and inspected prior to 17 September next. 

9. I also order that the legal representatives approach the counselling section of this Court today, if possible, to arrange appointments for the parties to attend for counselling.  I note that there has already been a report prepared by a counsellor in this matter.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 8 August 2012.

Legal Associate:       

Date:   19 September 2012