BENSLEY & WHERRY

[2020] FamCA 1030

FAMILY COURT OF AUSTRALIA

BENSLEY & WHERRY [2020] FamCA 1030

FAMILY LAW – CHILDREN – Final Orders – where the mother and the father consent to final parenting orders – where the orders provide for the children to live with the mother and spend no time with the father and that the mother have sole parental responsibility – where the orders sought reflect the current arrangements between the parties – where those arrangements have been ongoing for a period of approximately four years – orders made by consent as agreed between the mother and the father.

Family Law Act 1975 (Cth)

APPLICANT: Ms Bensley

RESPONDENT: Mr Wherry

FILE NUMBER: MLC 6992 of 2020

DATE DELIVERED: 13 November 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 13 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Herron

SOLICITOR FOR THE APPLICANT: Ranges Legal

THE RESPONDENT: In Person

Orders

BY CONSENT IT IS ORDERED

1. That the Applicant Mother, Ms Bensley, shall have sole parental responsibility, make all decisions, have long-term care, welfare and act in the best interests at all times of the children of the relationship Y Wherry and X Wherry (“the children”).

2. That the children live with the Applicant Mother.

3. That it is in the best interests of the children, Y Wherry born … 2006 and X Wherry born … 2009, that their names be changed and the said children henceforth be known as Y Bensley and X Bensley, and it is requested the Victorian Registrar of Births Deaths and Marriage do effect the required change to the said children's birth registration pursuant to this Order.

4. That the Respondent Father pay for the court and legal costs of these orders.

5. 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 the 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.

IT IS DIRECTED:

1. That the Minutes of Consent Order remain on the Court file.

THE COURT NOTES:

A.That these orders are final and discharge any previous orders and documentation.

B.That the applicant father agrees to relinquish all parenting rights and responsibilities regarding the children from the date of these orders taking effect.

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 Bensley & Wherry 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: MLC 6992 of 2020

Ms Bensley

Applicant

And

Mr Wherry

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today upon application made for parenting orders in relation to the two children of the relationship, X who is aged almost 14 years and Y who is aged 11 years. 

2. The parties originally sought to agitate child support issues in addition to the parenting issues.  Ultimately, I am informed today that the parties have entered into a child support agreement which will have the effect of finalising and resolving the outstanding child support issues.

3. The parties also asked today that the Court make final parenting orders, the effect of which will be that the mother will have sole parental responsibility for making decisions regarding the children’s long term care, welfare and development.

4. Further, there will be orders that the children live with the applicant mother, Ms Bensley, and she will be permitted to do all acts and things as may be required to alter the children’s names such that they will share her surname. 

5. The respondent father, Mr Wherry, represents himself today.  He has confirmed that he has obtained independent legal advice in relation to the proposed orders.  The father has confirmed today that he seeks orders in the terms of the minute of order signed by him.  It is his position that these arrangements reflect the children’s views and wishes.  They also reflect what have been the arrangements in place in respect of the children’s care for almost four years.  It is on that basis that he asks the Court that orders be made in these terms. 

6. The material before the Court and submissions made by the parties indicates that the children are well settled in their current arrangements.  They live with the mother and her partner and they are attending school and meeting all of the usual milestones in terms of their development.  The children are supported by the mother and her partner.  The proposed orders are in accordance with the children’s views.

7. In determining parenting matters, the Court must have regard to what is in the best interests of the children. That determination is informed by the considerations set out at s 60CC of the Family Law Act 1975 (Cth).

8. Having regard to the material filed and the submissions made today and the matters I am required to take into account pursuant to s. 60CC of the Act, I am satisfied that the proposed orders are appropriate and in the children’s best interests. Therefore I will make orders in the terms of the minute of order with amendment as is signed by the parties. The minute will be marked with the letter “A” and will remain on the court file.

I certify that the preceding seven (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 13 November 2020.

Associate: 

Date:  13 November 2020