Bowers and Wheeler

[2013] FamCA 242

FAMILY COURT OF AUSTRALIA

BOWERS & WHEELER [2013] FamCA 242

FAMILY LAW – CHILDREN – Parenting – With whom the children live – Parental Responsibility – Where matter heard on an undefended basis – Where children have lived with the Father for four years – Where the children have had contact with the Mother while in the Father’s care – s60CC Family Law Act 1975 (Cth) – MRR v GR – Order made for shared parental responsibility – Order made that children live with Father – Order made for Mother to spend time with the children as agreed

APPLICANT: Ms Bowers

RESPONDENT: Mr Wheeler

INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid, Solicitor

FILE NUMBER: BRC 5204 of 2011

DATE DELIVERED: 28 March 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 28 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance by the Applicant Mother

SOLICITOR FOR THE RESPONDENT: Mr Leather, Solicitor of Dale & Fallu Solicitors appearing for the Respondent Father

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Lyons of Counsel appearing for the Independent Children’s Lawyer
SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER:	Lyrene Wiid Lawyer & Migration Agent

Orders

IT IS ORDERED ON AN UNDEFENDED BASIS THAT:

1. The parties have equal parent responsibility in relation to long term welfare issues concerning the children, B born on … October 2003 and C born on … May 2005.

1. The children live with the Father.

1. The Mother spend time with the children at all times as may be agreed upon but failing agreement as follows:

a.from the conclusion of school on Friday until 3.00 pm on Sunday

each alternate weekend.

1. The parties are to communicate by telephone with the children when the children are not in their care each Sunday and Tuesday between the hours of 7.00 pm to

   
   

   7.30 pm:

a.the party without the children is to instigate this telephone call to a number

provided by the other party (preferably a land line); and

b.the party with the children is to ensure that these calls are facilitated and

offer the children privacy whilst they are talking to the other party.

1. The children spend time with the Mother for one (1) half of all gazetted school holiday periods to be taken on a week about basis.

1. The children spend time with the Father from 9.00 am until 5.00 pm on Father’s Day.

1. The children spend time with the Mother from 9.00 am until 5.00 pm on Mother’s Day.

1. The children spend time with each parent individually on the children’s birthdays, with the Father on his birthday and with the Mother on her birthday, or have a telephone call on the day if it is a school day and it is not practical to spend time in person.

1. Unless otherwise agreed, the changeovers are to occur at the D Town Train Station.

1. Both parents ensure that the other parent is notified of any serious illness, injury, medical or like emergency suffered by the children within two (2) hours, including the name, address and telephone number of the relevant hospital or medical practitioner.

1. These Orders hereby authorise the Mother to obtain from the children’s schools all notices, letters, school reports, photographs and invitations and to attend parent/teacher interviews or other activities to which parents are invited.

1. Each party is hereby authorised to obtain from the children’s medical practitioners all notices, reports and other information when necessary.

1. The parties advise the other of any change to their telephone number or residential address in writing within twenty-four (24) hours of such change occurring.

1. The parties not criticise or denigrate the other party or the other party’s family in the presence of or within the hearing of the children.

1. The parties encourage and not undermine each child’s relationship with the other party.

IT IS FURTHER ORDERED THAT:

1. The Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowers & Wheeler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5204 of 2011

Ms Bowers

Applicant

And

Mr Wheeler

Respondent

REASONS FOR JUDGMENT

1. This is an application on behalf of Ms Bowers for orders in relation to two children of her relationship with the respondent, Mr Wheeler, B, born in October 2003, and C, born in May 2005. 

2. The children have lived with their father for some four years, and there has been considerable contact between the mother, Ms Bowers, and the children.  This appears to have been facilitated recently by the respondent’s present partner, Ms E.  It appears as though she and the mother are getting along reasonably well, and notwithstanding allegations made by the mother concerning the father’s physical contact towards the children.  It appears in the most recent report of Ms F filed 5 October 2012, that she is not persuaded that this is the case.  And I refer in particular to paragraph 51 of her report.

3. I have had placed before me, by the solicitor’s for the respondent, a draft order.  This order has been considered by the independent children’s lawyer, and she has given instructions to her counsel Ms Lyons that she agrees with the proposals contained therein.

4. I note that there is equal parental responsibility, see the matter of MRR v GR (2010) 240 CLR 461.

5. Obviously, I now have the jurisdiction to make such orders. And I take it into consideration, the matters contained in the final report of Ms F. I am satisfied that those matters are set out in s 60CC are more than adequately covered, and that the orders should be made in accordance with the draft put before me, and agreed to by the independent children’s lawyer.

6. Order as per draft, signed by me and placed with the papers.

RECORDED   :   NOT TRANSCRIBED

1. I order that the independent children’s lawyer be discharged.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 28 March 2013.

Associate: 

Date:  28 March 2013