Avery and Chand

[2007] FamCA 1556

FAMILY COURT OF AUSTRALIA

AVERY & CHAND [2007] FamCA 1556

FAMILY LAW – CHILDREN – Shared Parenting – Contest between parents resolving with consent orders for an effective shared arrangement – Children raised by father after mother pursued alternate relationship – Family report on the strength of each parent resulting in final consent orders

Family Law Act (1975)

APPLICANT: Ms Avery

RESPONDENT: Mr Chand

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 10551 of 1998

DATE DELIVERED: 12 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 12 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Melilli

SOLICITOR FOR THE APPLICANT: Martin Irwin & Richards

COUNSEL FOR THE RESPONDENT: Mr Dickson

SOLICITOR FOR THE RESPONDENT: Cynthia A Toose & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Williams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Watson & McLeod

Orders

1. That all previous parenting orders be discharged.

2. That the parties have equal shared parental responsibility for the children S born … January 1994 and T born … February 1997.

3. That the children live with the wife as follows:

   (a)from 5.30 pm Friday to start of school Tuesday on the weekends of 16^th November 2007 and 7^th December 2007;

   (b)commencing Term 1 2008 from 5.30 pm Friday to start of school Wednesday on each alternate week thereafter;

   (c)commencing Term 4 2008 each alternate week commencing 5.30 pm Friday;

   (d)in the Christmas holidays:

   (i)in odd numbered years for the first half of the holidays (suspended from 4.00pm Christmas Eve to 4.00pm Christmas Day);

   (ii)in the other years for the second half of the holidays and from 4.00pm Christmas Eve to 4.00pm Christmas Day;

   (e)in school term holidays, for one half of the holiday periods, being the first half in odd numbered years and second half in even numbered years in default of agreement.

4. That the children live with the husband at all other times.

5. That notwithstanding anything to the contrary in these orders:

   (a)the non-resident parent have time with the children on the children’s birthdays for 2 hours if a school day and 4 hours otherwise;

   (b)the children spend Father’s Day with the husband and Mother’s Day with the wife.

6. That in the event the wife seeks to travel to the United States with the children:

   (a)she provide at least 2 months prior notice of her intention to do so;

   (b)the husband provide the children’s passports to the wife before the planned travel to enable ticketing arrangements;

   (c)the wife return the passports to the husband on her return;

   (d)the wife be restrained from taking the children to any country other than the United States other than for scheduled stopovers in transit (without the husband’s prior written consent);

   (e)the wife provide an itinerary of the planned travel and copy tickets as soon as available;

   (f)the wife be at liberty to extend the Christmas holiday time up to a total of 4 weeks (in total).

7. That the parties each ensure the children attend scheduled sporting commitments during their respective periods of care.

8. That 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.

9. That the order for appointment of the Independent Children’s Lawyer be discharged.

10. That pursuant to Order 38 Rule 26 of the Family Law Rules it was reasonable to brief Counsel.

11. That all extant applications be otherwise dismissed and removed from the Active Pending Cases List.

NOTATION:

The parties agree to consult Dr D, Psychologist, in relation to any issues relating to the children, including the implementation of these orders prior to returning to Court, if necessary.

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLF 10551 of 1998

MS AVERY  

Applicant

And

MR CHAND  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me in the regional sittings of the Family Court of Australia at Mildura and essentially involves proceeding hallmarked in adversity, resolution and finally compromise in a sensible and dignified manner.  The proceedings involve the welfare of S who was born in January 1994 and T who was born in February 1997.  They are accordingly 13 and 10 years of age respectively. 

2. By way of background, the wife was born in the USA in July 1963 and is 44 years of age.  She is employed as a Consultant.  The husband was born in June 1967 and is 40 years of age.  He is a farmer by occupation.  They met and married in the United States of America in September 1990.  Following unhappy differences between them, they separated in 1998.

3. The procedural history between the parties is set out in the wife's affidavit filed on 22 October 2007 at paragraphs 25 to 32.  In essence, for the reasons stated in her affidavit, consent orders were made on 13 November 1998 providing for the children to live with the husband.  The wife at that stage was pursuing a further relationship.  On 4 October 1999, following her return from the United Kingdom, orders were made that the children spend time with her on alternate weekends with provision being made for holidays and special occasions. 

4. Subsequently, in 2002 the wife reissued proceedings applying for the children to live with her.  On 14 October 2003 orders were made by this court ordering that the children continue to live with their father and spend time with their mother each alternate weekend with provisions for holidays.

5. On 13 October 2006 the wife commenced the current proceedings seeking to vary the previous orders and sought orders that the children live week-about with each of the husband and herself.  The husband opposed the order as sought.  Orders were made, helpfully I might say, for the appointment of an Independent Children's Lawyer on 24 November 2006 as a result of which Mr Williams this day appears to represent the children.

6. On 6 September 2007 a Family Report was prepared by Ms H, the Family Consultant.  I have read all the relevant documents.  Both parties have caused to be filed affidavits that I have found to be very helpful indeed.  The wife's affidavit sets out her position following the separation and makes reference to the husband's second marriage, ultimately identifying the problem between the husband's second wife, Ms L and the two children, S and T.  I might add that the husband commenced the relationship with Ms L in November 2000.  They married in 2005 and apparently separated in May 2007. 

7. The husband has caused to be filed a very helpful affidavit on 8 October 2007 and there records in succinct form the children's current living arrangements and the basis underpinning the orders sought by him.  He sought an order that the wife spend time with the children each alternate weekend from Friday until Tuesday accommodating thus a 4/14 day per fortnight arrangement.

8. I have, as I said, read an extremely helpful and productive family report from Ms H.  Having dealt extensively with background, the proposals of each of the parties and their current living arrangements, Ms H reported her observations of each of the husband, the wife and the children.  In particular she reported on the children's relationship and their expressed wishes.  It is doubtless, in my view, that despite the past difficulties, for which the wife has suffered clear and unequivocal remorse, the future for these two children will be best facilitated by the arrangements that have been agreed upon between the parties which are marked Exhibit “A”.

9. The assessment and evaluation of Ms H commences as follows:

   “29.This report concerns the longer term parenting arrangements for [S] and [T], two healthy, happy boys assessed to be closely bonded with their parents who are strongly committed to their children.  Their father has clearly provided a solid, nurturing and safe structure in which they have thrived and undertook that role under difficult circumstances.  The time spent with their mother has progressed well and [the mother]'s stability presents as a solid base on which increases in time should be explored.”

10. That paragraph opening her assessment was framed in a very concise and compelling manner and fundamentally exposed in short form the parameters of the dispute.  Ms H observed that the boys' developmental trajectory looked very positive and that it was highly likely that they would grow into “well-rounded, bright young men” who were developing all the necessary skills to “enter childhood with intelligence, optimism and secure in the knowledge that they are much loved”.  Ms H referred to their wish that they spend more time with their mother and that it would seem, she opined, appropriate that plans be made for that to gradually occur.  Those plans have been embraced by both parties and are consummated in the orders proposed by each of them and marked Exhibit “A”.

11. Ms H reported that the husband was assessed by her as an “intelligent and caring”, “insightful” father, strongly committed to the two children and provided them with a nurturing and learning childhood experience.  He was understanding of the risk posed to the boys' wellbeing should he reunite with his ex-partner and acknowledged his sons' view of this fact.  I am informed by Mr Dickson, who appears for the husband, that there are negotiations between the husband and his present wife to resolve their financial differences and thus enable each to go their separate ways.

12. Ms H reported that given the boys are intelligent, capable and strongly bonded to their father, their wish for some change was “testimony to the strength of the paternal bond”.  On the other side of the register, Ms H said that the mother showed “insight” in her contribution to the current dilemma before the court and indicated that her early experience of mothering S and T “was flawed”.  Ms H reported her view that the wife’s life at that stage presented as “confusing” and was certainly lacking in emotional strength and stability and doubtless that she placed her emotional need to be in a relationship ahead of the need to parent the children.  The wife acknowledged the error and impact this had on those around her.

13. It seems to me that the wife has travelled a long and difficult journey and it speaks very much to her credit that her position too is resolved this day.  Ms H reported that the wife's sense of “work and home life stability and demonstrated commitment” was consistent with her statements and that she was “realistic” about her life.  It was the view of Ms H that the wife could provide a “nurturing, stable care arrangement” for the children.  She noted that the wife “generously described the strength of the husband's connection” to the boys and felt that a shared arrangement would provide a good sense of balance.  It was the clear view of the reporter that the two boys should start spending more time with their mother.  Not only was it their expressed wish, but it fitted with their need to explore the potential of that arrangement.  Ms H went on to say:

    “36.… Importantly, the boys experienced the proposed change as positive and whilst they cannot be expected to understand all the implications of the arrangements, some safe exploration of change could be harnessed at this point in their lives.”

    Ms H then went on to discuss the virtue of communication. 

14. I propose  to make the orders sought.  I congratulate both the husband and the wife on coming to this very dignified, sensible and insightful arrangement.  The solicitors for wife are to engross the orders.  I will direct that my remarks be transcribed, placed on the court file, made available to the parties.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 11 January 2008