Binh and Ning

[2020] FamCA 683

FAMILY COURT OF AUSTRALIA

BINH & NING [2020] FamCA 683

FAMILY LAW – CHILDREN – best interests –final parenting orders made by consent.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Binh

RESPONDENT: Ms Ning

INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates

FILE NUMBER: MLC 2411 of 2018

DATE DELIVERED: 23 June 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 23 June 2020

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Allen

SOLICITOR FOR THE RESPONDENT: Knight Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Dunstan, Bowlen Dunstan & Associates

Orders

BY CONSENT IT IS ORDERED

1. That all previous orders in relation to the children X born … 2012 and Y born … 2016 (“the children”) be discharged.

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

3. That the children live with the mother.

4. That the children spend time and communicate with the father as follows:

   (a)       During school term:

   (i)Every second weekend, commencing from 10:00am Sunday to the commencement of school Monday, or 10:00am Monday is a non-school day;

   (ii)Every Wednesday as follows:

   A.In respect of the child Y from childcare at 2:30pm to childcare at 8:30am Thursday; and

   B.In respect of the child X from after school to before school Thursday.

   (b)For one week during each of the school term vacations at times to be agreed, and in default of agreement from 9:00am on the middle Saturday of the holiday to 7:00pm on the last Saturday before school resumes;

   (c)During the long summer school vacation as follows:

   (i)From 9:00am on the second Monday of the vacation until the following Monday at 5:00pm;

   (ii)From 10:00am Sunday to 6:00pm Monday on the third weekend before school resumes; and

   (iii)From 10:00am Sunday to 6:00pm Monday on that the last weekend before school resumes;

   (d)If Father’s Day falls on a weekend when the children are not already spending time with the father, from 9:00am until 6:00pm on Father’s Day;

   (e)By Viber each Tuesday commencing at 7:30pm to 8:30pm with the call to be initiated by the father;

   (f)Such further and other times as may be agreed between the parties.

5. That the father’s time with the children be suspended:

   (a)If Mother’s Day falls on a weekend when the children are to be spending time with the father, from 9:00am until 6:00pm Mother’s Day;

6. In the event either party is unable to care for the children during their respective periods pursuant to these orders, then the other parent is to be given first option to care for the children.

7. Unless otherwise agreed between the parties in writing, when changeover does not take place at the children's schools, it take place at B Town McDonalds.

8. That each parent keep the other informed of their mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.

9. That in the event either child suffers any significant injury or illness, the party with whom that child is living shall forthwith inform the other party of the nature of the injury or the illness, along with the contact details of any professionals or medical institution to which the child has been referred.

10. That if either child is prescribed or given medication, or a particular form of treatment is required to continue into a period when the other party will be caring for the child, each party shall provide the other with all necessary information regarding such medication or treatment.

11. That the parties inform and authorise any medical practitioner or healthcare professional on whom the children attend to provide the other parent with any and all information regarding the children, and each parent be at liberty to attend at any appointment with such medical practitioners and/or healthcare professionals.

12. That if not already done so, the parties forthwith do all such acts and things and sign all such documents necessary to authorise any school at which the children attend to provide both parties with copies of school reports, access to any portfolio work for the children, school circulars, notices, invitations and the like.

13. That each of the parties, their servants and agents be hereby restrained by injunction from:

    (a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party in the presence or hearing of the children, or any of them, or allowing a third party to do so; and

    (b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them, or allowing a third party to do so.

14. That pursuant to Sections 62B and 65DA 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 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.

15. That all extant applications of the parties be otherwise dismissed.

16. That the appointment of the Independent Children's lawyer be discharged

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 Binh & Ning 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 2411 of 2018

Mr Binh

Applicant

And

Ms Ning

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter was listed before me for final hearing in relation to the parties’ competing parenting applications. 

2. The father is the applicant in the proceedings.  He is aged 40 years, and is employed in customer service. The father has represented himself in the proceedings. 

3. The mother is aged 40 years, she is a homemaker and she is represented today by counsel.

4. The parties married in 2011 and separated in either late 2015 or 2016.  The parties divorced in 2018. 

5. There are two children of the relationship; X, who is aged almost eight years, and Y, who is aged almost four years.

6. This matter has had a long history. The proceedings commenced between the parties in March 2016 in the Family Court of Western Australia. In January 2018, the matter was transferred to the Melbourne registry of the Family Court of Australia. There have been allegations raised by the mother throughout the course of the proceedings as to concerns with respect to the father’s conduct.  It has been her case that she has suffered significant family violence at the hands of the father.  Those allegations are largely denied by the father. 

7. The parties, in the context of the preparation of the proceedings, have had a number of interim hearings in this Court.  The matter came before Senior Registrar Field on 2 August 2018, and orders were made at that time which made provision for the father to spend time with the children.  The evidence before the Court from the family consultant indicates that that time has progressed well.

8. Upon the matter entering my docket, on 7 February 2020 I made trial directions and orders for the preparation of a family report.  Family consultant Ms C has prepared the family report in this matter, which is dated 20 April 2020.

9. The parties have had the opportunity to reflect and consider the observations, assessments and recommendations contained in that report. They have engaged in discussions and negotiations as a result of the receipt of that report. 

10. The matter was listed before me last week for a case management hearing.  It was indicated to the Court that day that the parties sought to continue their negotiations.  Progress was made, and the matter was stood down until today to enable the parties to continue their discussions with a view to resolving the matter.  These discussions have been fruitful, and the parties today present a minute of proposed orders which will have the effect of ending the proceedings.

11. The parties seek an order that provides for them to have equal shared parental responsibility for the children and for the children to continue to live with the mother, who has been their primary carer since the parties’ separation.  Specific orders are also sought in relation to the father’s time and communication with the children; those orders include provision for him to spend every second weekend with the children from 10.00am Sunday to 10.00am Monday.  Further, that the children spend each Wednesday with him from after school or childcare Wednesday until the commencement of school or childcare on Thursday.

12. The parties have carefully considered holiday arrangements, and specific orders are sought in relation to the father’s time with the children during school holiday periods.  The parties have also sought specific orders as to how they will continue to communicate with each other regarding any illness or injuries sustained by the children, and in circumstances where the children might be prescribed medication or other treatments.

13. The parties will join in ensuring that each has the opportunity to meet with and discuss the children’s needs with their medical practitioners and health care professionals, and there is also provisions to ensure that both parties will be able to obtain information from the children’s school regarding their progress.

14. Both parties seek an order restraining the other from discussing the proceedings with the children or abusing, insulting, belittling, rebuking or otherwise denigrating the other party.

15. These proposed orders largely reflect the recommendations made by the family consultant in the family report. 

16. 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).

17. I am satisfied, having regard to the material filed before the Court, and particularly having regard to the observations and recommendations made by the family consultant, who has had the opportunity to interview both parties with the assistance of an interpreter, and also had the opportunity of conducting a video link interview with the children, that the proposed orders are appropriate and in the children’s best interests.  The proposed orders will ensure that the children will continue to have an opportunity to have a meaningful relationship with both of their parents.  Accordingly, I make orders in the terms of the minute of order signed by the parties.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 23 June 2020.

Associate: 

Date:  23 June 2020