Bland and Sparks

[2011] FamCA 671

FAMILY COURT OF AUSTRALIA

BLAND & SPARKS [2011] FamCA 671

FAMILY LAW – Magellan – mother ceased to be represented – orders by consent as to majority of parenting arrangements – mother declined to appear – orders unopposed as to special day time.

APPLICANT: Mr Bland

RESPONDENT: Ms Sparks

INDEPENDENT CHILDREN’S LAWYER: Mr T Mulvany

FILE NUMBER: MLC 2815 of 2009

DATE DELIVERED: 8 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 8 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carter

SOLICITOR FOR THE APPLICANT: MacGregor Solicitors

COUNSEL FOR THE RESPONDENT: Mr Davis, granted leave to withdraw

SOLICITOR FOR THE RESPONDENT: Maria Barbayannis & Co – granted leave to withdraw.
In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kiernan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: T. J. Mulvany & Co

Orders

IT IS ORDERED BY CONSENT:

1. That save and except for the order for the appointment of the Independent Children’s Lawyer all parenting Orders of this Court be discharged.

2.

2.1That the father exercise sole parental responsibility for the child, S, born in 2005. (“ the child”).

2.2That on the father exercising any decision pursuant to the said sole parental responsibility including but not limited to the selection of a school for the child pursuant to these Orders, any elective surgery, medical treatment or allied medical treatment including but not limited to psychological assessment, and/or any relocation of the residence of the child, the father advise the mother immediately of such decision be pre-paid post to C Street, D Town or such other address as the mother shall subsequently notify in writing and by email to the mother at ….

3. 

3.1Subject to the provisions of sub-paragraph 3.2 hereof, the child live with the father,

3.2That the father continue to reside with his mother (paternal grandmother) until the cessation of the 2011 school year. Thereafter, the child shall be permitted to live with the father without the necessity for the father’s mother to continue to co-reside with the father and the child.

3.3.That the child be enrolled at and attend the E School until the cessation of the 2011 school year.

1. That the mother spend time and communicate with the child as follows:

   4.1During the calendar year 2011, from 12noon until 5.00 pm or such longer day period as shall be agreed by the mother and father or the mother and the paternal grandmother on a Sunday (unless otherwise agreed) every three weeks in the presence of the paternal grandmother such date to be agreed by the mother and the father or the mother and the paternal grandmother and in the event of any dispute the selection shall be nominated by the paternal grandmother.

   4.2During the calendar year 2012, from 12 noon Saturday to 12 noon Sunday each three weeks, such dates to be by agreement and for the purposes of same the mother notify the father and the paternal grandmother of all specific accommodation details for the child on such weekend and the mother shall furnish the paternal grandmother with appropriate details to corroborate same.  And in the event of any dispute as to the selection of a weekend the particular weekend shall be selected by the paternal grandmother.

   4.3In the calendar year 2013, from 5.00 pm Friday until 5.00 pm Sunday every three weeks, such dates to be by agreement and for the purposes of same the mother notify the father and the paternal grandmother of all specific accommodation details for the child on such weekend and the mother shall furnish the paternal grandmother with appropriate details to corroborate same.  And in the event of any dispute as to the selection of a weekend the particular weekend shall be selected by the paternal grandmother; and

   4.4.1From and after the 1st January 2014, in the calendar year 2013, from 5.00pm Friday until 5.00pm Sunday every three weeks, such dates to be agreed and for the purposes of same the mother notify the father and the paternal grandmother of all specific accommodation details for the child on such weekend and the mother shall furnish the paternal grandmother with appropriate details to corroborate same; and

   4.4.2Five consecutive nights at times to be agreed in the first, second and third term of the child’s school holidays and two separate periods commencing in the long summer holidays of 2014/2015, each of five consecutive nights, in the child’s long school summer holidays and for the purposes of same, the mother notify the father and the paternal grandmother of all specific accommodation details for the child on such holiday time and the mother shall furnish the paternal grandmother with appropriate details to corroborate same. The time pursuant to 4.4.1 is suspended during all school term holidays as of term 1 in 2014 and recommences with a weekend pursuant to paragraph 4.4.1 on the 1st weekend of the next school term.

   4.5Notwithstanding anything before contained in the above paragraphs, the mother shall be at liberty to telephone the child each Wednesday and Sunday at 6.00pm and for the facilitation of such telephone calls, the mother shall initiate the call and thereafter the father shall remove himself from the immediate vicinity of the location of the telephone.

1. For the purposes of all time spent by the child with the mother:

   5.1In 2011, time shall occur, under the direction of the paternal grandmother, at a public place or child focused location approved of by the paternal grandmother, and in the event that the mother proposes any other person or persons be present during such time the mother shall notify the paternal grandmother of any such proposal with the right of the paternal grandmother to require that any such person or persons not be present.

   5.2For the purpose of time commencing from 1st January 2012, and continuing, the time with the mother shall occur in the absence of the paternal grandmother save and except that the mother shall continue to keep the maternal grandmother fully informed of the child’s whereabouts throughout each such spend time occasion.

   5.3Also for the purpose of time commencing from 1 January 2012 and continuing, such overnight time shall not occur unless the mother co-operates in supervised drug screen testing, commencing 1 December 2011 and continuing until 1 December 2013.

2. The father shall also co-operate in supervised drug screen testing in the period 1 December 2011 and continuing until 1 December 2013.

3. Supervised drug testing requirements for the father and the mother shall be as follows:

   7.1The testing occur at a F Pathology centre or other appropriate place as approved by the solicitors for the father and mother from time to time:

   7.2The testing occur randomly and within 48 hours of the solicitors for the father or the mother making an appropriate request for the testing to occur; and

   7.3The results for the testing, on each occasion, be forwarded, as soon as possible to the solicitors for the father and the mother.

   7.4Such requests for drug testing by the solicitors for the father and mother not to exceed 6 per annum.

4. 8.1Unless the mother has obtained the prior written consent of the father on any individual occasion or occasions, the mother be and is hereby restrained from attending upon the child at his school or within two hundred metres of such school at any time which on reasonable grounds the child may be expected to be in attendance at school;

   8.2Notwithstanding the provision in paragraph 7.1 above, the mother shall be at liberty to attend:

   8.1.1 School concerts involving the child,

   8.1.2 Parent/teach meetings (and/or like interviews) and to receive such information as parents customarily receive, such attendance for parent/teacher interviews and any such meetings to occur at a time when the child shall not be present at school.

5. In the event that the father is charged with any criminal offence, or the father becomes aware that any member of his household has been charged with a criminal offence, the father shall notify the mother in writing of such fact and of the outcome of any such charges,

6. In the event that the mother is charged with any criminal offence, or the mother becomes aware that any member of her household has been charged with a criminal offence, the mother shall notify the father in writing of such fact and of the outcome of any such charges.

7. The father shall ensure that the Principal of any school attended by the child from time to time is provided with a copy of these Orders.

8. That the Order for the appointment of the Independent Children’s Lawyer be discharged with effect from 31st December 2010, AND IT IS REQUESTED that Victoria Legal Aid fund the Independent Children’s Lawyer for the necessary attendances to assist in the implementation of these Orders.

9. That pursuant to s65DA(2) and s.62B of the Family Law Act 1975 (Cth), the particulars of the obligations that 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.

10. That all extant proceedings be otherwise dismissed and all matters removed from the Active Pending Cases List.

11. That the paternal grandfather be excused from any Undertaking previously provided to this Court.

12. That the father and mother do all thing to facilitate the participation of the child in counselling at the E School and such report, if any, be distributed by the E School to the father and the mother.

IT IS ORDERED:
Christmas Day:

1. S shall spend time with the mother on 25 December 2012 from 9am to 12 noon, at the home of the paternal grandmother, in the father’s absence, or at such other location as is agreed between the paternal grandmother and the mother.

2. the child shall spend time with the mother on 25 December 2013 and each year thereafter at times agreed between the parents and failing agreement from 9am to 1pm.

S’s Birthday:

1. The child shall spend time with his mother at times agreed on his birthday and failing agreement:

   19.1In 2011 from 9am to 12noon on Sunday 3 April at an indoor play centre with the paternal grandmother to be in attendance as agreed or in the absence of agreement at at a play centre at G Street, H Town.

   19.2In 2012 and thereafter from 4pm to 6pm if a school day and from 10am to 2pm if a non- school day

   19.3That the father in 2011 do all acts and things necessary to ensure that the paternal grandmother takes the child to the play centre provided for in paragraph 19. 1 of this Order but unless the mother has previously confirmed to the paternal grandmother that she will attend the paternal grandmother not advise the child prior to the mother’s arrival of any expectation that the mother may attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2815 of 2009

Mr Bland

Applicant

And

Ms Sparks

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These proceedings involve the child B, born 5 April 2005, and concern the parent with whom he should live, and how much time he should spend with the other parent.  Today the parties largely resolved all matters in issue between them. 

2. The father was represented by Ms Carter of counsel.  The mother represents herself at the moment.  Previously, or until this morning, she was represented by a firm of solicitors, Barbayannis Lawyers, and had Mr Peter Davis of counsel appear on her behalf.  They were given leave to withdraw this morning with the knowledge of the mother, without objection by her, and with the mother saying that she had largely agreed to some orders.  Mr Mulvany is the Independent Children's Lawyer, and the parties have been assisted I am satisfied, to a great degree, by Mr Kiernan of counsel who is briefed by Mr T Mulvany.

3. The matter has been stood down for most of today for the mother, and the father through his counsel, and Mr Kiernan, to discuss terms of settlement.  At approximately 2.45 pm, I was presented with very detailed minutes of orders to which the parties had agreed.  There were a few minor amendments which I considered were necessary and which in my presence the mother agreed to. 

4. The mother then raised the issue of Christmas Day, and the child's birthday.  There was discussion in court about what ought to happen and it seemed to me that the matter was largely agreed, although I would not say that it was agreed in every respect.  I stood the matter down to permit the parties some time to write out terms themselves. 

5. When the matter was mentioned again at 4 pm, the mother refused to come into court.  My court officer has made it clear that she is required in court.  In discussion this morning, I told the mother that if she did not attend court, as and when required, orders could well be made in her absence without further input by her.  That reiterates advice she received pursuant to an order of mine of yesterday and, indeed, a notation to the orders which were made on 15 November 2010.

6. A history of this matter has been rehearsed in several documents.  It has been the subject of two very extensive reports by a family consultant, Ms J.  This morning I confirmed with all of the parties that I had read everything that they required me to read for today.  I consider I am well familiar with the matter, having also managed it in the Magellan list over the last 12 months.  It's a troubling matter, to say the least, but with my knowledge of it I am satisfied that the terms upon which the parties agreed, and which were presented to me at about 2.45 pm, were appropriate orders to be made in this matter.  I will make those orders based on the mother's previous consent to them, and also because I am satisfied that they are in the best interests of the child. 

7. As to Christmas and birthdays, there was no agreement between the parties.  Because the mother will not come into court, I am unaware of any aspects of the orders which are proposed by the father to which she is not agreeable or has some reason to oppose.  If she was in Court, I would listen to her viewpoint and hear any submissions she wanted to make as to why I should not make orders in those terms.  The matter is unopposed.  The Independent Children's Lawyer supports those proposed by the father. 

8. I am not prepared to make the orders sought.  I have received submissions in relation to some amendment to the proposed orders, and am satisfied that the Independent Children's Lawyer and the father are now content with what I propose to order.

9. Christmas Day will be as was discussed in the mother's presence when she was in court.  The child's birthday this year will be at a play centre and under the supervision of the paternal grandmother.  In successive years, it will be for two hours if on a school day, and for four hours if on a non-school day. 

10. The most complicated aspect of the orders relates to this year.  Because the mother won't come into court, I don't know that she will even abide an order that the child see her just prior to his birthday.  The paternal grandmother is employed on 5 April and it is therefore not practicable for her to attend to supervise any time between the mother and the child on the actual day.  It was proposed that the father could be in attendance, but I am satisfied that it is not appropriate for the parents to be put together in the same premises, particularly on the occasion of the child's birthday so, as indicated, I have not made orders in those terms.

11. It seems the best that can occur is that the mother spend time with the child on Sunday, 3 April 2011, which is two days prior to this birthday, and that she spend time with him and the paternal grand mother from 9 am to 12 noon at a play centre that can be agreed between the paternal grandmother and the mother.  If there's no agreement, it is to be the play centre at H Town. 

12. A difficulty arises that because the mother will not come into court, I am not quite sure that she will avail herself of the time which I propose to order, and I wish to avoid the child being disappointed by the non-attendance of his mother.

13. The orders which I make are intended to achieve the following:

    (a)to give the mother an opportunity to confirm with the paternal grandmother that she will attend. 

    (b)If the mother confirms that she would attend, then the paternal grandmother and the mother can decide on a play centre. 

    (c)If the mother does not confirm with the grandmother prior to 3 April that she will attend the play centre on the Sunday, the paternal grandmother is nonetheless required to take the child to the play centre and remain there with him from 9 am to 12 noon. 

14. It is important that no one, including the paternal grandmother or the father, tell the child that he ought to expect his mother to attend to see him at the play centre.  If worst comes to worst and the mother does not come, then the child will have three hours in a play centre with his grandmother two days before his birthday, none the wiser that his mother had an opportunity to be there but chose not to.  Ideally, the mother will be there and they will have an enjoyable time together.

15. I am satisfied that orders in those terms are in the child's best interests and permit him to spend time with the mother in an appropriate environment.

16. The orders will be engrossed by the Independent Children's Lawyer, probably through his counsel, and the Court will seal them as soon as they are engrossed.  The orders will be sent to the mother at C street, D Town, which is the address nominated in the notice of ceasing to act filed this morning.  That address is to be shown in the records of the Court as the mother's address henceforth, or unless and until further proceedings are issued nominating an alternative address for service.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 February 2011.

Associate: 

Date:  1 March 2011