Barden & Haddox
[2023] FedCFamC1F 573
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barden & Haddox [2023] FedCFamC1F 573
File number(s): NCC 3788 of 2021 Judgment of: SMITH J Date of judgment: 10 July 2023 Catchwords: FAMILY LAW – CHILDREN – Parenting Orders - Final Consent Orders – where the parties reached an agreement regarding both children – father to have sole parental responsibility – children to live father - eldest child to spend time with mother in accordance with their wishes –consent order that younger child to spend time with mother as agreed between parties – Court’s concern about potential interpretation of order as a de facto no time order - best interests of child – meaningful relationship with the mother – father to facilitate youngest child’s relationship with mother consistent with youngest child’s safety. Legislation: Family Law Act 1975 (Cth) Part VII Cases cited: Rice & Asplund (1979) FLC 90-725 Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 6 July 2023 Place: Newcastle Solicitor for the Applicant: Alan NcNeill Solicitors Solicitor for the Respondent: Tony Cox Lawyers Solicitor for the Independent Children's Lawyer: Jennifer Blundell & Associates ORDERS
NCC 3788 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BARDEN
Applicant
AND: MR HADDOX
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
6 JULY 2023
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
1.The Father, MR HADDOX born 1979 is to have sole parental responsibility for making decisions about the major long term issues concerning the child, including the care, welfare and development of the child, X born 2007. These issues include but are not limited to the child’s: education; religious and cultural upbringing; health; name; and any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent, or for the parties to comply with these orders.
2.That X live with the Father.
3.That X may spend time with, and may communication with, the Mother, MS BARDEN born 1982 in accordance with X’s wishes.
4.Pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Final Orders be made in accordance with the document attached hereto.
5.The matter be removed from the list of matters awaiting finalisation and all future listing dates be vacated.
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT & FAMILY COURT NCC 3788 of 2021
OF AUSTRALIA AT NEWCASTLE (DIV II)BETWEEN: MS BARDEN
(Applicant Mother)
AND: MR HADDOX
(Respondent Father)
AND: INDEPENDENT CHILDREN'S
LAWYER
FINAL ORDERS
BY CONSENT:
1.That all previous orders be discharged.
2.The Father shall have sole parental responsibility for the child Y born 2016.
3.That Y shall live with the Father.
4.That Y shall spend time with the Mother as agreed between the parents.
5.Notwithstanding Order 3, the Father shall:
(a)Do all such things as are necessary to enable the Mother to liaise with Y’s treating medical practitioners and obtain copies of medical reports/assessments/ psychology reports ect from time to time;
(b)Do all such things as are necessary to enable the Mother to liaise with the child’s school from time to time.;
(c)Do all such things to enable the Mother to attend parent/teacher interviews at the convenience of the child’s teacher, provided that this does not take place at the same time as any interview with the Father.
(d)Do all such things to enable the Mother to obtain directly from the school copies of school reports, newsletters and school photograph order forms.
6.That the Father shall keep the Mother updated about Y’s current school and General Practitioner and any other treating medical professionals such as medical specialists and Psychologists.
7.That the mother may attend Y’s school for events ordinarily attended by parents, such as Canteen, school assemblies, Mother's day events, school events and classroom assistance, but is restrained from attending Y’s school outside of events ordinarily attended by parents. A copy of these orders may be provided to Y’s school.
8.That all extant Applications be removed from the list of active cases.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barden & Haddox has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
These proceedings concern the appropriate parenting orders pursuant to the Family Law Act 1975 (Cth) for X, born 2007 and now 16, and Y born 2016, and now seven.
The matter was listed before me today for allocation of Trial dates.
The applicant mother, Ms Barden (aged 41) and the respondent father, Mr Haddox (aged 44) were both legally represented. The parties and the Independent Children’s Lawyer (‘ICL’) advised that they had agreed on proposed final orders in relation to each child.
The proposal in relation to X, which had not been reduced to writing, was that he live with the father, that the father exercise sole parental responsibility, and that X spend time with the mother in accordance with X’s wishes.
That proposal reflects the agreement reached between the parties at the time of the Family Report conferences with the child court expert, Ms B on 1 February 2023, see paragraph [4], and is consistent with Ms B’s recommendation in the Family Report dated 3 February 2023. I am satisfied given X’s age, strongly expressed views and the current position as set out in the Family Report, that those orders are in X’s best interests and I will make those orders.
The proposal in relation to Y is that the father have sole parental responsibility for Y and for Y to live with him.
It was proposed by consent order [4] that Y spend time with the mother “as agreed between the parents”, with orders requiring the father to do all such things as are necessary to facilitate the mother liaising with Y’s medical practitioners and school and to obtain medical and school reports. It was also proposed that the mother be permitted to attend parent/teacher meetings, but not with the father, and to attend school for events ordinarily attended by parents but be restrained from attending otherwise.
I raised with the ICL and the parties’ legal representatives my concern about the formulation of order 4. That concern is the potential for the father to construe and treat it as equivalent to a blanket no time and no communication order. That would not be consistent with the opinion of the child court expert and is not an order I would approve at this time and without a final hearing. I was advised that this was not the intention of the parties or the ICL. I was not and am not suggesting that the father is acting, or would act, in bad faith, but raised this issue given the desirability of such clarity in final orders as can be achieved.
It was submitted that given the complexity and numerous issues in the case, as extensively identified in the Family Report, this was the best way forward, and that the potential changing ground and issues sought to be addressed by these Orders would not become simpler by reason of a Trial.
I indicated to the parties, that whilst I had concerns with this formulation, I did not see that requiring the parties to proceed to a final hearing would be in Y’s best interests when the mother, who is legally represented, and the ICL both consider that these orders will “leave the door open” to the mother and Y having such meaningful relationship as they can over time.
I also indicated that my approval of the proposed terms would include this short Judgment, so that should there be an issue at a future time, perhaps involving the principles in Rice & Asplund (1979) FLC 90-725, there would be no doubt that the parties and ICL’s stated intention in the formulation of Order [4], and the Court’s approval of that order, is not that they have the effect of a simple no-time and no communication order when the mother is in a position to have a relationship with Y.
The proposal as put to me, and the basis on which I approve it, is that the father is required to act on a good faith basis to facilitate Y’s relationship with the mother, to the extent consistent with Y’s safety.
There is no easy formulation of orders to address the myriad variables that may impact on the situation in the future, and whilst the lack of specificity in the orders does involve some risks that they will not work to Y’s best advantage, I am satisfied that the same difficulties would arise in seeking to formulate specific orders at a final hearing and that it is not appropriate to require the parties to proceed to a final hearing when they are willing to try to work together in this way.
On that basis, on balance, I consider it to be in Y’s best interests to make the consent orders as proposed, noting also that I enter consent order [7] for Y as reformulated by me for clarity during oral submissions and as agreed to by the parties and ICL.
Those are my reasons.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 10 July 2023
0
0
0