Achtel and Balafas

[2018] FamCA 650

FAMILY COURT OF AUSTRALIA

ACHTEL & BALAFAS [2018] FamCA 650

FAMILY LAW – CHILDREN – Final parenting orders by consent – future defended hearing vacated – liberty reserved to the parties to have any subsequent parenting application or contravention application listed before me urgently for directions.

APPLICANT: Mr Achtel

RESPONDENT: Ms Balafas

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9796 of 2017

DATE DELIVERED: 17 July 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 17 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Baker

SOLICITOR FOR THE APPLICANT: Auja Baker Legal Services

COUNSEL FOR THE RESPONDENT: Ms Bastick

SOLICITOR FOR THE RESPONDENT: Leyton-Palma Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lonergan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED:

1.That all extant orders be discharged.

2.That all hearing dates listed be vacated.

PARENTAL RESPONSIBILITY, LIVING WITH AND TIME ARRANGEMENTS

3.That the parents have equal shared parental responsibility for the long-term care, welfare and development of the child of the relationship, namely X born … 2013, hereinafter referred to as “the child.”

4.That the child live with the Mother.

5.The child spend time with the Father as follows:

a.      Commencing immediately the weekend following the making of these orders, for no less than four (4) hours every alternate Sunday during the month of July 2018;

b.      For no less than four (4) hours every alternate Sunday during the month of August 2018 and on each Wednesday from after school until 7pm;

c.      Between September 2018 and January 2019 from 10am to 6pm every alternate Sunday and on each Wednesday from after school or 3pm in the event of a non-school day until 7pm;

During School Terms Commencing February 2019:

d.     During Terms One (1) and Two (2), each alternate weekend from 10am Saturday to 5pm on Sunday and on each Wednesday from after school until 7pm;

e.     From Term three (3), each alternate weekend from after school Friday to 5pm Sunday and on each Wednesday from after school until 7pm.

6.The time provided in Order 7 is to be suspended on every school holiday period, Easter and on special occasions and replaced with the following times:

During School Holidays Periods other than long summer holiday period:

a.      During the first week of school holidays from 5pm Friday until 5pm on Monday and on the second week from 5pm Wednesday until 5pm on Thursday;

During Long summer holiday period:

b.     Each alternate weekend from 5pm Wednesday until 5pm on Sunday;

Special Occasions:

c.     On child’s birthday (…) if it falls on a non-contact weekend/day from after school or 3.30pm if non-school day until 5.30pm;

d.     On the Father’s birthday if it falls on a non-contact weekend/day from after school or 3.30pm if non-school day until 7pm;

e.     On Father’s Day if it falls on a non-contact weekend from 10am until 7pm;

f.      On Christmas Eve from 9am to 1pm;

g.     On Christmas Day as follows:

i.From 10.00am on Christmas Day 2018 until 5.00pm on Christmas Day 2018 and in each alternate year thereafter;

ii.From 3.00pm on Christmas Day 2019 until 10.00am on Boxing Day 2019 and in each alternate year thereafter.

h.     During the Easter period from after school on Maundy Thursday or 3pm should it not fall on a school-day until 3.00pm on Easter Saturday.

i.      All further times as agreed between the parents.

7.     That during times when the child is in their care, each parent will encourage the child to communicate with the other parent by telephone at times agreed between the parents, and in the absence of agreement every second day between 6.00 pm and 6.30 pm.

8.     If either parent is unable to care for the child during their periods of care, they offer the other parent the option to care for the child.

9.     For the avoidance of doubt, each parent be permitted to liaise directly with the child’s school and sporting bodies to receive copies of school notices, information, newsletters, school reports, school photographs and any other necessary information about the child’s progress (at that parent’s own expense).

10.   Each parent is at liberty to organise their own separate attendance at the child’s school for the purposes of any function or activity normally attended by parents, including but not limited to sporting events, concerts and parent/teacher interviews.

11.   Each parent keep the other informed of the child’s health and medical issues as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in cases of emergency (with the parent in whose care the child is to inform the other parent as soon as possible).

12.   That each parent keep the other informed of their residential address, telephone numbers and e-mail address and notify the other within seven (7) days of any change to such particulars.

RESTRAINTS

13.Each parent, their servants and agents be hereby restrained by injunction from:

a.      Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or members of their family;

b.     Discussing allegations or evidence in these family law matters or the contents of any correspondence exchanged between the parents and/or their legal representatives to, with or in the presence of hearing of the child and from permitting any other person to do so; and

c.     Being intoxicated with alcohol or under the influence of illegal drugs or abusing prescribed medications while the child is in their care or for six hours prior thereto.

DOMESTIC AND OVERSEAS TRAVEL

14.If either the father or mother wishes to undertake any travel within Australia with the child, he or she first obtain the written consent of the other at least 21 days before their intended travel date with the child and provide to the other a copy of the travel itinerary and contacts details of the child and parent while they are intrastate or interstate with the child. 

15.Both parents be and are hereby restrained from travelling overseas with the child without first obtaining the written consent of the other such consent being provided at least 21 days prior to the intended travel date, with such consent not to be unreasonably withheld on the disclosure of itinerary details and contact numbers for the child whilst the child is overseas.

16.The parents must collaborate with the other and do all things necessary and required to apply for and obtain an Australian passport for the child at least 21 days before the date the passport is due to expire and the expense of the passport application be shared equally between the parents.

17.The passport of the child is to be retained by the mother at all times save for when the child will travel overseas with the father at which time the mother is to provide the father with the child’s passport at least 7 days before the intended travel date.

18.The father must return the passport of the child to the mother at the same time the child returns to the mother following her trip overseas.

EDUCATION

19.That within 21 days of the making of these orders, both parents enrol for conjoint family counselling through Family Life and do all such things necessary to complete such counselling to improve their co-parenting relationship.

20.Both parents do all acts and things necessary to ensure that the child attends B School for her primary school education. 

21.Both parents attend post-separation parenting education as recommended by Family Consultant Ms C in the family report dated 12 June 2018 and provide Certificates of Completion to the other parent’s legal representative within 21 days of the making of these orders.

22.The parents be and are each hereby restrained from engaging counselling or other social science service for the child without prior agreement of the other. If such counselling or social science service is agreed, both parents provide intake information to the counsellor and receive feedback from the counsellor as requested by the counsellor or social scientist.

23.Both parents be and are hereby restrained from using corporal punishment with the child.

24.Reference in this Order to school terms, holidays and vacations are references to terms and holidays and vacations for the school at which the child is enrolled as a student.

25.I reserve liberty to the parents to apply on short notice in relation to travel.

26.In the event that parenting proceedings (including contravention of parenting orders) are initiated within the next 2 years, that application may be listed before me urgently for directions by arrangement with my Associate at …

27.That the Applicant Father’s and Respondent Mother’s respective applications for final parenting orders be dismissed.

IT IS FURTHER ORDERED THAT:

28.    The order requesting the appointment of an independent children’s lawyer be discharged.

29.My reasons for decision be transcribed and when settled placed on the Court file and a copy provided to the parties.

30.Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

31.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations 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 those particulars are included in these orders.

IT IS DIRECTED:

32.That the signed minute of consent orders as amended be marked Exhibit “A” and remain on the Court file.

33.That the Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner within 14 days.

AND THE COURT NOTES:

A.      That the parents will encourage and foster the child’s relationship with them and their grandparents and neither parent will denigrate the other parent or family members of the other parent in front of the child and will take into account the wishes of the child in relation to them spending time with the grandparents.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9796 of 2017

Mr Achtel

Applicant

And

Ms  Balafas

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. I have been requested to and have made final orders by agreement between the parties incorporating some amendments for ease of reading and operation.  The order which I have added after reading the family report by family consultant Ms C dated 12 June 2018 is to reserve to each of the parents an entitlement to bring any parenting application which is issued in the next two years before me for directions urgently and to do so by arrangement with my associate. 

2. I commend the parties for having resolved the matter by agreement today, however X is young.  The parties have a considerable history of disputation and perhaps misunderstanding and, whilst I hope these orders will work for a long time into the future, my sense is that they also may not. Notably, the parties have reached a resolution which has allowed me to vacate a hearing, of five days or more, which was fixed for some months hence.  Those hearings can now be allocated to another case.

3. In the event that the resolution breaks down, either by way of an allegation that the orders have been contravened or with a party making an application for further parenting orders, I perceive it to be in X’s best interests for those subsequent proceedings to be expedited at least at the point of the first directions hearing. 

4. The parties were allocated a listing in the Magellan list of cases conducted by this Court which they have not used.

5. The order entitling them to have the matter listed before me urgently does not compel either of them to have any subsequent application listed before me.  They can have it listed before any other judge, but they may not get from another judge the priority that I would be prepared to afford them. 

6. The basis for this Order is that the family has settled this matter without a hearing.  If they need a hearing subsequently to vary or augment this arrangement, they should not go to the back of the queue. 

7. I wish the parties and X all the best in the future.  I hope I do not see them within the next two years, but if they do have a dispute, then I want it to be a dispute which is dealt with as expeditiously as X’s best interests require. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 17 July 2018.

Associate: 

Date:  27 August 2018