Benson and Costa

[2007] FamCA 530

FAMILY COURT OF AUSTRALIA

BENSON & COSTA [2007] FamCA 530

FAMILY LAW – CHILDREN – Time with father – Graduated re-introduction

APPLICANT: MR BENSON

RESPONDENT: MS COSTA

FILE NUMBER: BRF 4995 of 2001

DATE DELIVERED: 5 February 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 5 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: MR DURHAM
BT Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR CARTER

Carter Naughton Rice

THE RESPONDENT MOTHER Not in attendance

Orders

1. Orders are made in accordance with the Minutes of Orders attached.

1. Pursuant to s65DA(2) and s62B, 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.

MINUTES OF ORDERS

1. That all prior orders in relation to the child AB born in October 1998 be discharged and replaced with the orders herein

2. That all prior orders in relation to the child RC born in May 2001 be discharged and replaced with the orders herein

Residence

1. That the children RC and AB live with the mother

Contact

1. That the children spend time and communicate with the father as follows, but not limited to:-

   a)Two occasions of supervised Contact at the B Centre to occur within 3 months of this order;

   b)Thereafter unsupervised Contact between the times of 9.00am and 3.00pm on an agreed Saturday to occur within 3 and 6 months of this order with contact exchange to be at B Centre and with father to give mother 1 month’s notice of visit date and time;

   c)Thereafter upon completion of 4a) and 4b) for the first half of all Victoria Gazetted school holidays in the odd years and second half of all same school holidays in even years with the children attending the father in Brisbane; and

   d)At all reasonable further times as may be agreed

2. That if the Mother returns to Brisbane or the father resides in the same metropolitan area as the mother then the children have visitation contact with the father as follows, but not limited to-

   a)Each alternate weekend commencing 9.00am Saturday and concluding 5.00pm Sunday, except any mothers day weekend, with the first contact period to commence within 2 weeks of both parents living in the same on metropolitan area;

   b)On any weekend which has fathers day in it contact with the father from 9.00am Saturday to 5.00pm Sunday;

   c)For the first half of all Victoria Gazetted school holidays in the odd years and second half of all same school holidays in even years; and

   d)At all reasonable further times as may be agreed.

Contact Provisions

1. That the cost of transport for the children to and from contact centres to be at the mothers expense

2. That the cost of using the services of the contact centre be proportioned 50/50 between the mother and the father

3. That for all periods of Christmas period contact the agreed changeover date be the 28^th December, unless otherwise agreed

4. Any alternating weekend contact is agreed to be suspended during all periods of school holiday contact, however at the conclusion of each school holiday period alternate weekend contact shall resume as if it had not been suspended

10.That should the children change school, school holidays dates for that new school will apply

11.On any long (public) weekend which includes a Monday the period of contact shall be extended until 5.00pm on Monday and on any long weekend that includes a Friday the period of residence shall commence at 9.00am on Friday

12.That should either parent wish to discuss additional contact arrangements outside the times set out in the above clauses that he or she will provide the other with one months notice of what may be proposed, on the understanding that the other parent is permitted to agree or disagree on the proposal, but that any refusal must be justified by legitimate and proper excuse.  Each parent shall respect the decision of the other in these matters. Should a proposed arrangement be agreed it is agreed between the parties that it will be put in writing and will work in conjunction with these orders

Unavailability

13.That each parent do all things necessary to ensure that he or she is at the contact centre or any other exchange location at the set date & time

14.Should the father be unable to exercise holiday contact pursuant to the above clauses the father will give the mother two (2) weeks notice of this unavailability to exercise the contact and unless agreed otherwise it shall be forfeited

15.The purpose of above clauses is to ensure that each party respects the agreed contact times and takes responsibility for when they can not met them

Airport Flights

16.That the mother shall arrange and pay for the child’s flights between Brisbane and Melbourne at the commencement and completion of such interstate contact time with the father

17.That the mother and father shall drop off and pick up the child to and from the airport at the arranged times

18.That the father shall pay one half of the costs of airplane travel upon being presented with receipts from the mother

‘No Worry’ Calls

19.That upon anytime the mother or father is unavoidably detained or will be later than fifteen minutes beyond any agreed exchange period time, that a polite phone call be made to the other parent and/or contact centre to advise them.

Phone & Mail

20.That whilst the child is in the care of the mother, the father is entitled to telephone contact on Wednesday between 6.30pm and 7.30pm, for period of up to 15 minutes and that the mother shall make the children available for telephone conversations with the father at these times

21.That the costs of phone calls to be the responsibility of the father and that the father shall set up a Telstra phone away card or phone number that bills the father’s account automatically for such purpose

22.That the mother shall assist the children with letters, photos, videos and anything that the children would like to send to the father and that the mother encourage the children to send such items to the father on a monthly basis.

23.That the mother assist the children with all phone calls to the father whenever the children wish to call and any the father in any reasonable circumstance

24.That should children wish to make additional calls to other parent that the parent shall not unreasonable refuse them

25.That the mother at all times supply a current postal address and phone number and inform within seven days the father any change in that address or phone number

26.The mother is to hand the child unopened letters, other mail and items addressed to the child from the father and the father shall do the same for letters, mail and other items addressed to the child from the mother

27.That the mother assist the children in reading any mail that is sent to them from the father

Education

28.That the mother shall inform the father within one (1) month of these orders of all school, preschool and prep school names and addresses that the children are attending

29.That the father be permitted to contact the place of the children’s education and request report cards and speak to teachers regarding the children’s progress.  The parties shall each respectively authorise and direct any school, tutor, or other individual or agency providing education to the children to discuss the Children’s education and progress with the other party and to provide copies of documents such as reports, assessments, school newsletters, and the like. Either party may produce a copy of these orders to any of the persons referred to in the above orders as evidence of the others authority

Information on Health

30.That the mother keep the father informed in relation to any significant health issues effecting the children’s or those requiring medical/dental treatment.  The parties shall each respectively authorise and direct anyone providing medical treatment to the children to discuss that treatment or any other related issue with the other party. Either party may produce a copy of these orders to any of the persons referred to in the above orders as evidence of the others authority

Names

31.That the child RC be from now on referred to as RB by all parties

32.That RC’s birth certificate be amended to show child’s surname as B and to show the father as Mr B and that the mother shall do all things necessary to facilitate change in birth certificate records within 4 months of this order and post copy of amended birth certificate to father within 2 weeks of change being made

Parent Behaviour

33.That both the mother and the father refrain from (or allow any other third party to, )  belittling, put down or otherwise demean, or slander or denigrate the other parent or any significant person in that persons life within the presence or earshot of the child/ren, including during any phone contact with the children

34.That any phone calls required between the parties shall be polite, courteous, respectful and without swearing or sarcastic or inflammatory remarks

35.That each parent not use the child as a messenger or to pass information, a more appropriate method being agreed as by letter or phone call to other parent themselves or by use of a contact book which travels with the children

General Care and Welfare

36.That both the mother and the father both be jointly responsible for the long term care, welfare and development of the child/children

37.That the mother & father have sole responsible for making the decisions about the day to day care, welfare and development of the children during the periods when the children are with them, and that each parent shall respect those decisions of the other

38.That the Children’s independent lawyer shall be discharged after 6 months of these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will, for all publication and reporting purposes, be referred to as Benson & Costa.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF4995 of 2001

MR BENSON

Applicant

And

MS COSTA

Respondent

REASONS FOR JUDGMENT

ex tempore

1. I make the proposed orders, subject to those changes and provided the solicitor for the father provides a clear typed draft of those proposed orders as amended by the solicitor for the father and as further amended by me.

2. I note that the father's application relates to two children – AB born in October 1998 and RC born in May 2001.

3. This matter has been before the Court for some considerable time.

4. The mother has failed to participate in the proceedings since about June of last year and in so doing has chosen not to file further material or to attend pre-trial conferences on 6 October 2006 and 18 January 2007, failed to appear at a previous Court hearing on 11 December and failed to appear today, notwithstanding she was given notice of the adjourned hearing.

5. I have the benefit of the material filed by the father and welfare reports filed by the Independent Children's Lawyer.  The father is seeking to have some time with his children.  The family circumstances were complicated by the fact that, shortly after separation in October of 2000, the mother relocated to Melbourne and she took up a relationship with a Mr C.  As a consequence, the father has had very limited opportunity to spend time with AB and to come to know RC.  There have been previous orders for supervised contact and arrangements have been made.

6. The report of Ms D indicates that both the children and the mother have been comfortable with the supervised contact to date, with the mother reporting that it had progressed well.

7. It would appear that there have been past issues relating to the father's mental health and capacity to properly care for the children.  Those matters appear to have been addressed, at least to the satisfaction of the Independent Children's Lawyer and to some extent by Ms D.  The father's presentation now is one of greater stability, improved health and improved personal circumstances.

8. The father, through his proposed orders, is continuing to acknowledge that there is a need to proceed to some extent conservatively and is proposing some more periods of supervised contact and then some periods of daytime contact, leading to periods of overnight and school holiday contact.

9. The children will be six and nine or 10 at about the time they will have the opportunity to spend overnights with their father.  In the absence of any indicators to the contrary, the time has come to afford these children the opportunity to spend more meaningful time with their father and to develop a more meaningful relationship with him. 

10. The mother has not placed any material before the Court which would enable it to conclude that such a progress, which is in turn entirely consistent with the objects and principles of the Family Law Act, is otherwise against the children's best interests.

11. The father is entitled to approach this Court to provide him and his children with some definition and certainty in relation to the progress of the relationship with one another.  I note that the proposed orders have the full support of the Independent Children's Lawyer and, in the circumstances, I make orders in terms of the proposed orders.

I certify that the preceding eight (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: