Andrews and Collins

[2017] FamCA 467

FAMILY COURT OF AUSTRALIA

ANDREWS & COLLINS [2017] FamCA 467

FAMILY LAW – CHILDREN – Orders by consent – Orders that children live with the mother and spend time with the father – Orders for joint parental responsibility – Specific issues orders relating to medical and educational issues – Injunctive orders

Family Law Act 1975 (Cth)
APPLICANT:	Mr Andrews

RESPONDENT: Ms Collins

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission Of Tasmania

FILE NUMBER: HBC 887 of 2011

DATE DELIVERED: 6 April 2017

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 6 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE RESPONDENT: In Person

COUNSEL FOR THE RESPONDENT:

Mr Bearman

Legal Aid Commission of Tasmania

Orders

1. BY CONSENT orders be made in accordance with the minute of consent order signed by the parties and the Independent Children’s Lawyer, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

2. Pursuant to s 65DA(2) and s 62B, the particulars of 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 these particulars are included in these orders.

3. All extant applications be dismissed.

IT IS DIRECTED

1. The email from Dr B dated 31 March 2017 and the minute of order initialled by me dated 6 April 2017 remain on the court file.

2. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS REQUESTED

1. Within twenty one (21) days of the date of this order, the Independent Children’s Lawyer inform the child C of the orders made today and the impact of such orders.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Exhibit “1”

1. All extant parenting Orders be discharged.

2. [Ms Collins] (“the mother”)  and [Mr Andrews] (“the father”) have equal shared parental responsibility for [C] born … 2004 (“[C]”) and [D] born … 2006 (“[D]”) (also referred to as “the children”).

3. The mother agrees not to relocate her principal place of residence from Southern Tasmania.

4. The parties agree that C will complete his secondary school years at [E] School, unless otherwise agreed in writing between the parties.

5. The children live with the mother.

6. [D] spend time with the father as follows:

   (a)on days and times agreed with her school/s and or with her “respite carer” or care facility and or the hospital with such time to occur on terms as agreed (including attendance by members of the paternal family) in consultation between the father and the relevant authority; and

   (b)for such further time as may be agreed between the parties from time to time

7. [C] spend time with the father in accordance with his wishes.

8. The father be permitted to send any gifts and cards to [D] and [C] and the mother will assist [D] to enjoy those gifts and cards.

9. The parties keep one another advised of their current residential address/ and or postal address’s, email and telephone contact details.

10. The parties communicate by email or SMS only in relation to the children only and by telephone in emergencies.

11. The parties not denigrate nor abuse them or their family in the presence of the children.

12. The parties not threaten or harass the other or their family in the presence of the children.

13. In event the children suffer from any serious illness, injury or are hospitalised, the parent who is caring for the children at the time of the event shall notify the other as soon as is reasonably practical.

14. Each party shall be at liberty to attend any school event involving the children to which parents are ordinarily invited. On such occasion, the parties shall, should they need to deal with each other, deal with each other in a civilised and appropriate fashion.

15. The father is at liberty to obtain, at his own expense,  any of the children’s school reports, newsletters, photographs and the like from the schools.

16. A copy of these orders may be produced to children’s school to establish the entitlements of each of the parties.

17. Each parent shall be at liberty to obtain information in relation to the children’s health in a general sense and or arising from the notification of any serious illness or injury. That information may be obtained from any treating doctor or specialist at any time and any such treating medical practitioner is obliged to provide such information.

18. A copy of these orders may be produced to such doctor or specialist to establish the entitlement of each party pursuant to these orders.

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 Andrews & Collins 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 HOBART

FILE NUMBER: HBC 887 of 2011

Mr Andrews

Applicant

And

Ms Collins

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. In the proceedings of Andrews and Collins, I have made orders in terms of a minute of order prepared by the Independent Children’s Lawyer.  These are final orders regarding the children, C aged 12 and D aged 11.

2. The orders are made at the request of each of the parties and on the recommendation of the Independent Children’s Lawyer.  The children the subjects of these proceedings include D, who has significant health difficulties and whose care is being very well managed by the mother, which the father acknowledges.  Her care will continue and the father will continue to have equal shared parental responsibility in relation to that child.  The father is to continue to spend time with the child, although that is somewhat constrained.  In the words of Dr F, it is constrained not because of any concerns about the father, but concerns in relation to the child’s health, and those orders, in all of the circumstances, make sense.

3. The most difficult issue in this case, from the child’s point of view, relates to C.  C is refusing to spend time with his father and has expressed fear of his father.  I do not know whether that is accurate or inaccurate, as I have made no findings of fact.  There are allegations and counter-allegations in relation to, on the part of the mother, an alleged history of family violence.  On the part of the father, there is an alleged history of the mother alienating the child from him in her care of the child.

4. Looking at each of the parties now, there is no joy in either of them in terms of these proceedings, and no doubt no joy in what I am saying.  The step taken by the father was, quite frankly, a brave and appropriate step, and I acknowledged that to him whilst he was sitting in court.  What has happened amongst all of this, is that these parents have engaged in high levels of conflict for whatever reasons.  I have made no determination.  C and, perhaps to a lesser extent D, have been the victims of that conflict.

5. For the father to take a step back and allow C to find his own place in the world and perhaps come back and visit his father in some years’ time and reconnect in those years, is, having read the report of Dr F, and the material from Dr B, is probably the most sensible approach. I imagine this has caused enormous distress and upset to the father, but I would not make these orders if I thought it was, otherwise than in the circumstances this child finds himself, the best result for him, having regard to the relevant factors under s 60CC of the Family Law Act 1975 (Cth).

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 6 April 2017.

Associate:     

Date:              22 June 2017