BEADS & MACDONALD

[2011] FamCA 159

FAMILY COURT OF AUSTRALIA

BEADS & MACDONALD [2011] FamCA 159

FAMILY LAW – CHILDREN - matter settled by consent – Judge’s observations regarding non-compliance with orders

APPLICANT: Mr Beads

RESPONDENT: Ms MacDonald

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 184 of 2009

DATE DELIVERED: 19 January 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Ryan J

HEARING DATE: 19 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stenhouse

SOLICITOR FOR THE APPLICANT: Adams & Partners

COUNSEL FOR THE RESPONDENT: Mr Wong

SOLICITOR FOR THE RESPONDENT: Bell Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea, Solicitor

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

Orders

1. By consent I make orders in accordance with paragraphs 1 to 19 and notations A to E inclusive of the document titled “Final Consent Orders” dated 19 January 2011 and attached hereto, signed by the parties and their legal representatives and the Independent Children’s Lawyer, as set out hereunder:

   “Final Consent Orders

   1.      That all previous orders in relation to the child D born … November 2006 be discharged.

   2.      That the mother and father shall have equal shared parental responsibility for the child.

   3.      That the child shall live with the mother.

   4.      That the child shall spend time with the father as follows:

   a.Commencing on Saturday 22 January 2011, from 9.00am Saturday until 6.00pm Sunday and each alternate weekend thereafter.

   b.From Friday 1 April 2011, the time the child shall spend with the father in accordance with Order 4a shall be extended to commence at 5.00pm on Friday. 

   c.The father shall be entitled to spend time with the child for a block period of no more than four nights on two occasions, once in September 2011 and the other in December 2011, provided that the mother is given at least 28 days notice in writing of the father’s intention to spend such time.

   d.That upon the child commencing school in 2012 the child shall spend time with the father during school terms as follows:

   i.From 5.00pm Friday until 6.00pm Sunday each alternate weekend.

   ii.For one half of the New South Wales gazetted school holiday period as agreed between the parties and failing agreement the first half in 2012 and each alternate year thereafter and the second half in 2013 and each alternate year thereafter, PROVIDED THAT in the Christmas 2012 school holidays, the period of time is exercised in blocks of no more than one week each.

   e.On the child’s birthday as agreed between the parties and failing agreement for two hours on a school day and four hours on a non school day and it is the parties intention to have a joint birthday for the child in each calendar year.

   f.For the Father’s Day weekend if the child is not already spending that weekend with the father for periods of time as previously stated in these Orders.

   g.From 5.00pm Christmas Eve until 2.00pm Christmas Day in 2011 and each alternate year.

   h.From 5.00pm Easter Saturday until 5.00pm Easter Monday in 2011 and each alternate year.

   i.From 5.00pm Easter Thursday until 5.00pm Easter Saturday in 2012 and each alternate year.

   j.By telephone on each Tuesday and Thursday when the child is not already in the father’s care between 5.30pm and 6.00pm and for this purpose the father shall call the mother’s mobile phone and the mother shall ensure the child is available to take the call.

   5.      That for the purpose of changeover the father shall collect the child from the McDonalds Restaurant in W at the commencement of that time and the mother shall collect the child from the father at the McDonalds Restaurant in P at the end of that time, unless otherwise agreed between the parents.

   6.      That the mother shall keep the father informed of all specialists medical appointments for the child and the father be at liberty to attend such appointment.

   7.      In the event of the child suffering any medical emergency requiring medical attention while spending time with or living with either parent:

   a.The other parent is to be notified as soon as practicable.

   b.The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable.

   c.That the medical practitioner or medical facility be advised that the other parent has access to the child’s medical records and the information obtained with them upon request.

   8.      That each parent be restrained from taking or allowing the child to be assessed or treated by any therapist, counsellor, psychologist or psychiatrist without the prior written consent of the other parent.

   9.      That the mother shall make arrangements at the child’s school to ensure that the father can obtain the following information and documents at his own cost:

   a.A copy of all school reports for the child.

   b.Notification for school activities that he may decide to attend.

   c.Notification of parent/teacher nights and the school is informed that it is the father’s desire to attend such events.

   d.In the event the child being taken from the school for an emergency, remedial or correctional treatment that the father be informed as soon as practicable.

   10.    That the child’s time with the father in accordance with Order 4 shall be suspended as follows:

   a.On the Mother’s Day weekend.

   b.On the child’s birthday if the father is already spending time with the child for two hours on a school day and four hours on a non school day.

   c.From 5.00pm Christmas Eve until 2.00pm Christmas Day in 2012 and each alternate year.

   d.From 5.00pm Easter Thursday until 5.00pm Easter Saturday in 2011 and each alternate year.

   e.From 5.00pm Easter Saturday until 5.00pm Easter Monday in 2012 and each alternate year.

   f.At all other times as agreed between the parties.

   11.    That each parent do all acts and things necessary to enrol in, attend and complete the Unifam Keeping Contact Program (or similar) within 6 months from the date of these Orders.

   12.    That each parent forthwith notify the other of their current residential address and nominated contact telephone number(s).

   13.    That each parent notify the other at least 7 days prior to any change in residential address (and provide details of the new address) and within 48 hours of any change in nominated contact telephone number(s).

   14.    That, except in the case of family emergency, each parent shall provide the other with at least 7 days prior notice of any intention to travel with the child outside of the state of New South Wales, including proposed dates of travel, address where the child will be staying and contact telephone number(s).

   NOTATIONS

   A.     The parties agree that they will review and discuss the mother's proposal to relocate with the child to Queensland when the child attains the age of 6.

   B.     The parties agree to take an open mind to the consideration of any such relocation having regard to the child's maturity at that stage and ability to spend regular time with father due to the long distances that are required to be travelled for the child.

   C.     In the circumstances that the parties are unable to reach agreement in relation to the mother's proposal to relocate with the child to Queensland when the child is 6 then the parties will attend further Family Dispute Resolution in an effort to resolve their outstanding issues.

   D.     The parties agree that these Orders shall not operate as any bar to either of the parties making a further Application to relocate the child's residence after he attains the age of 6.

   E.      In the event that the mother continues to have concerns in relation to D's behaviour, she will seek the assistance of the early childhood assessment team at L Public Hospital (or the equivalent at another NSW public hospital) and will use her best endeavours to ensure that the father is involved in that process, noting that the father agrees to such involvement.” 

2. By consent the father’s contravention application filed 15 December 2010 is withdrawn.

3. All outstanding applications are dismissed.

4. That pursuant to s.62B of the Family Law Act1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

5. That pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 184 of 2009

Mr Beads

Applicant

And

Ms MacDonald

Respondent

REASONS FOR JUDGMENT

1. Having made these consent orders, it is appropriate to record a few observations.

2. This is a very sensible outcome.  Ms MacDonald I do not know because there was no cross-examination, about the extent of compliance by you with orders for D (“the child”) to spend time with Mr Beads (“the father”).  If the evidence as it unfolded before me was consistent with the evidence given by the father, I am sure you would have expected that the Court would have taken a very dim view about non-compliance with its orders. You need to appreciate, and I am sure you do, the Court takes its orders very seriously.  When we make orders we expect them to be complied with.  If for example in two years time you decide that you want to explore again the notion of moving to Queensland with D you will need to anticipate that, whether it is me or somebody else, the Court will look very closely to see whether you have done what you have said you will in terms of compliance with the orders.  If in the years to come you seek to relocate, assuming the father does all he says he is going to do, but if you do then you will put yourself right behind the eight ball in trying to persuade this Court that you can be trusted from afar to facilitate D’s relationship with his father, if there is a pattern of non-compliance by you with orders. 

3. When you look at the cases, this is a very generalised observation, you tend to see that when parents have a track record of non-compliance with orders, of the court being satisfied the relationship between a child and the other parent has not been facilitated, the outcomes on relocation applications for the non-compliant parent are pretty bad.  Basically often they are not permitted to relocate.  We look very closely in the context of relocation applications to see whether the parent seeking to relocate can be trusted to do everything the Court says needs to be done.  Hence you will understand the importance of what has occurred historically in trying to predict what the future might hold.  So you need to keep in mind that if what the father said is correct about the child not being made available and you taking him off for examination without notice, those sorts of things, I hope this is the last of that.  I hope you appreciate my words are expressed in the context at this stage not knowing whether what you said was the truth or what the father said was the truth. 

4. I think given that there is a possibility there might be a further application in the future I will have these remarks transcribed.  They will remain on the file and thus there can be no doubt in the future about the parties understanding about the importance, as far as the court is concerned, about compliance with orders.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 19 January 2011.

Associate: 

Date:  20 January 2011