Beauchamp and Benson

[2016] FamCA 959

FAMILY COURT OF AUSTRALIA

BEAUCHAMP & BENSON [2016] FamCA 959

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the mother to provide documents filed in the proceedings to the Department of Immigration – where the mother is not an Australian citizen – where the mother seeks to remain permanently in Australia – where the mother has received advice that her application to remain in Australia may be assisted by the provision of material filed in the proceedings – where the father opposes the provision of the material on the basis that the material may be embarrassing and portray him in a poor light – where the father seeks time with the child – where the success of the mother’s application will more easily facilitate what time, if any, the court may order for the child to spend with the father – interim orders made that the mother be permitted to provide documents filed in the proceedings and the s 11F Report and Family Report to the Department of Immigration for the sole purpose of assisting the mother's application to the Department of Immigration.

Family Law Act 1975 (Cth)

APPLICANT: Ms Beauchamp

RESPONDENT: Mr Benson

INDEPENDENT CHILDREN’S LAWYER: Mr Lynch

FILE NUMBER: DGC 3885 of 2015

DATE DELIVERED: 20 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 20 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carter

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: Ms Patford-Smith

SOLICITOR FOR THE RESPONDENT: Hutchinson Legal

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Lynch

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Peter Lynch

Orders

UNTIL FURTHER ORDER

BY CONSENT

1. That the child B born … 2012 live with the Mother.

2. That the said child spend time with the Father:-

   (a)       For 2 hours on one occasion each week for four weeks.

   (b)       Thereafter for 3 hours on one occasion each week and

   (c)       At such other times as are agreed.

3. For the purpose of time pursuant to order 1 herein:-

   (a)       Such time shall be supervised by C Family Services, or such other professional Supervisor as is agreed between the parties, with the parties to complete all necessary forms and intake procedures as soon as practicable.

   (b)       Shall occur at times and places as nominated by the supervisor.

   (c)       The Father shall meet the costs of such supervisor and the costs of any report/s from the supervisor.

4. Within 48 hours the Father do all such acts and things and sign all such documents as may be necessary to cancel the child's current Australian passport and shall provide proof of same to the Mother's solicitors and the Independent Children's Lawyer.

5. BY THE COURT. Leave be granted to the Mother to provide all documents filed in this matter together with a copy of the S11F memorandum and Family Report to her immigration lawyers and/or to the Department of Immigration and Border Protection, provided that those documents are used for the sole purpose of assisting the Mother's application to the said Department of Immigration.

BY CONSENT:

1. Both parties be and are hereby restrained from:-

   (a)       Denigrating the other parent to or in the presence or hearing of the child or permitting anyone else to do so.

   (b)       Discussing these proceedings with the child or permitting anyone else to do so.

2. The Father shall pay to the Mother the sum of $100 per fortnight as spousal maintenance, such funds to be paid into the Mother's bank account BSB: …, Account Number: …, with this spousal maintenance to be reviewed at the adjourned hearing, or sooner upon application by the Mother.

3. The final hearing on 14 July 2016 be vacated.

4. The matter be adjourned to 9.30am on 13 October 2016 before Johns J.

5. Prior to the hearing date in order 9 the parties propose to attend Family Dispute Resolution Service 2nd Conference.

6. The parties file and serve all affidavits upon which they seek to rely at least 14 days prior the adjourned hearing.

7. That orders 2(a), 2(b) and 3 of the orders of the Federal Circuit Court dated 15 December 2015 shall remain in full force and effect.

8. The child be delivered to the child care facility of this Court on 13 October 2016 at 9am.

9. Pursuant to S.65DA(2) and 62BN of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.

It Is Noted

A.The Father shall not seek the costs of supervised time be taken into account in calculating child support or credited against any child support assessment made.

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 Beauchamp & Benson 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: DGC 3885 of 2015

Ms Beauchamp

Applicant

And

Mr Benson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The matter of Beauchamp & Benson comes before me today for a mention hearing in relation to the pending parenting trial, those parenting proceedings relating to the child B who is aged four years. 

2. The parties have attended a family dispute resolution practitioner on Friday.  There has been a shift in the position of the mother insofar it is now her stated desire that, if possible, she would like to remain living in Australia she having travelled to Australia from Country D initially, at least, for the purposes of a family holiday. 

3. The mother has made the necessary applications to the Department of Immigration.  She is currently remaining in Australia on a bridging visa.  I am informed that the decision in relation to her application for permission to remain in Australia is a matter that might take between one and two years for there to be a final determination.  I am informed by counsel representing the mother that the advice received is that her application to remain in Australia may well be assisted by the provision of material filed in these proceedings which will provide to the relevant officers at the Department of Immigration and Border Protection the background to the matter, the issues at play and the reasons why from the mother’s perspective and also from the child’s perspective it is important that she remain in Australia.

4. The father opposes the provision of information to the Department.  He is concerned that there are matters contained within that material that may be embarrassing and that possibly cast him in a poor light.  He is concerned to protect his privacy.  Having said that, the father’s position is also that he seeks that the mother and child remain in Australia, so there is a tension between his position in relation to the parenting proceedings as opposed to his position in relation to the provision of these documents to the relevant Department.  From the Independent Children’s Lawyer’s perspective, he is wholly supportive of the mother’s desire to provide the necessary information to the Department to aid her application to remain in Australia.

5. Having heard submissions I am satisfied that it is appropriate that an order be made granting the mother leave to provide the documents filed in the matter together with a copy of the s 11F memorandum and the family report to her immigration lawyers and to the Department of Immigration, those documents to be provided for the sole purpose of assisting her application for permanent for permanent residency. I am satisfied that with the addition of those words the documents will be utilised for that sole purpose and that there will be no real breach of the father’s privacy.  The documents will be sighted only by the relevant immigration lawyer and the relevant officers within the Department.  They are bound by the privacy provisions that operate, and accordingly I am satisfied that it is appropriate that those documents be provided. 

6. The mother seeks to remain in Australia.  She is opening the door to the father having supervised time with the child today.  The parties should be working together to facilitate and assist the mother’s immigration application given that each now seek have the mother and child remain in Australia.  Clearly from the father’s perspective if the mother remains in Australia that gives him a far greater opportunity of spending time with the child whether it continues to be on a supervised basis or whether ultimately it progresses to something different.  But if the mother and the child are not in Australia there will be very limited opportunity for that to occur.   

7. I am also asked to make orders by consent which provide for the introduction of supervised time between the child and his father.  Again, I am satisfied that the orders sought are in the child’s best interest, so accordingly I will make those orders by consent.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 20 June 2016.

Associate:

Date:  20 June 2016