BROWN & RILEY

FAMILY COURT OF AUSTRALIA

BROWN & RILEY

[2012] FamCA 288

FAMILY LAW – CHILDREN – Child related proceedings

APPLICANT:

Mr Brown

RESPONDENT:

Ms Riley

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

FILE NUMBER:

MLC

10658

2009

DATE DELIVERED:

7 March 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

7 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Salamanca

SOLICITOR FOR THE APPLICANT:

Beswick Foulkes Family Law

COUNSEL FOR THE RESPONDENT:

Mr Lethlean

SOLICITOR FOR THE RESPONDENT:

Phillips & Wilkins

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Tesoriero

SOLICITOR FOR THE INDEPENDENT CHILDREN’

Lampe Family Lawyers

Orders

1(a)THAT all previous Orders in relation to the child C, born …/5/2000 shall be and are hereby discharged.

THAT the Husband and the Wife retain equal shared parental responsibility for the long term care, welfare and development of the child, C
THAT during school terms and school term holidays C live with the Husband as follows :
(a)From the conclusion of school on Monday, 12^th March 2012 until the commencement of school on Monday, 19^th March 2012 and each alternate week thereafter;
(b)As may be further agreed in writing between the parties
THAT during school terms and school term holidays C live with the Wife as follows :
(a)From the conclusion of school on the 5^th March 2012 until the commencement of school on Monday, 12^th March 2012 and each alternate week thereafter
(b)As may otherwise be further agreed in writing between the parties.
THAT paragraphs 2 and 3 hereof are subject to the following :
(a)In the event that either of the parties residence time is scheduled to conclude on the Monday of a long weekend where Monday is a non school day that the party’s time shall extend to the following day, being Tuesday ;
(b)For the week commencing 12^th March 2012, C shall be returned to the Husband at 6.00 p.m. on the 12^th March 2012 to enable the Husband to convey C to H School for orientation/interview commencing at 8.30 a.m. on the 13^th March 2012 and that the Wife be at liberty to attend same ;
(a) THAT C live with the Husband for one half of the long summer vacation commencing December 2012 at times to be agreed and in the absence of agreement for the second half in even numbered years and for the first half in odd numbered years;
(b)THAT C live with the Wife for one half of the long summer vacation commencing December 2012 at times to be agreed and in the absence of agreement for the first half in even numbered years and for the second half in odd numbered years;
(c)(i) That for the purposes of calculating the first and second half of the long summer vacation the first half shall commence at the conclusion of school on the last day of term 4 and the second half concludes at the commencement of Term 1 in the following year;
(ii)That changeover at the mid point during the long summer vacation shall occur at 6.00 p.m. on the middle day of such holidays and in the event that such holidays are constituted by an odd number of days the party enjoying the second half shall have an extra day of such time.
THAT the residence Orders herein are subject to :
(a)That the Wife shall not consume alcohol to excess when C is in her care;
(b)C spending time with the Wife from 9.00 a.m. on the Saturday before Mother’s Day until the commencement of school on Monday next;
(c)(i)     C spending time with the Husband on his birthday, the birthday of P and B (her siblings in the Husband’s household) from 10.00 a.m. on such special day to the commencement of school the following day or 10.00 a.m. on the following day (if such special day is a non school day);
(ii)From the conclusion of school on the special day until the commencement of school the following day or 10.00 a.m. (if such special day is a school day);
(d)(i)     C spending time with the Wife on her birthday , the birthday of J (her sibling in the Wife’s household) from 10.00 a.m. on such special day to the commencement of school the following day or 10.00 a.m. the following day (if such special day is a non school day)
(ii)From the conclusion of school on the special day until the commencement of school the following day or 10.00 a.m. if such special day is a school day)
(e)On C’s birthday the following times shall apply with respect to the parent with whom C is not currently spending time with (“non resident parent”)
(i)(a)     In the event that C’s birthday falls on a weekday the non resident parent spend time in each even numbered year from the conclusion of school on the day preceding C’s birthday until the commencement of school on C’s birthday;
(b )In odd numbered years from the conclusion of school on C’s birthday until the commencement of school on the day after C’s birthday
(ii)    (a)     In the event that C’s birthday falls on a weekend the non resident parent spend time from 4.00 p.m. on the day preceding C’s birthday until 10.00 a.m. on C’s birthday in each even numbered years
(b ) In the event that C’s birthday falls on a weekend the non resident parent shall spend time from 10.00 a.m. on C’s birthday until 10.00 a.m. on the day after C’s birthday in each odd numbered year
(Such changeover shall be at Tullamarine Airport upon the request of the other party in writing);
(f)C spending time with the Husband from 9.00 a.m on the Saturday before Father’s Day until the commencement of school on Monday next;
(g)C spending time with the Husband from 10.00 a.m. on the 23^rd December 2012 until 10.00 a.m. on 25^th December, 2012 and in even numbered years thereafter (Such changeover shall be at Tullamarine Airport upon the request of the other party in writing);
(h) C spending time with the Wife from 10.00 a.m. on 23^rd December 2013 until 10.00 a.m on the 25^th December 2013 and in each odd numbered year thereafter (such changeover to be at Tullamarine Airport upon the request of the either party in writing);
(i)The provisions of paragraph 6 hereof shall apply in the event that C is not otherwise scheduled to spend time with either the Husband or the Wife during the periods stipulated in paragraph 6 hereof.
THAT the Husband and the Wife forthwith do all such acts and things and sign all documents necessary to cause C to be enrolled at H School from 2013.
THAT the Husband and the Wife respectively provide notice in writing of any changes relating to C’s residence, contact numbers, general health and identity of medical providers.
THAT for the balance of 2012 the Husband, his servants or agents collect C at the commencement of his residence time and deliver C at the conclusion of his residence time to C’s school or the Wife’s residence.
(a) THAT as and from the commencement of Term 1 in 2013, unless changeover is to occur at H School, the Husband, his servants or agents shall collect C from the Wife’s residence at the commencement of his residence time and the Wife shall collect C from the Husband’s residence at the commencement of her residence time.
(b)That otherwise the Husband and the Wife effect changeover at H School at the conclusion of their residence time, respectively
THAT the Father be responsible for all school fees and costs of books, uniform and the cost of curricular and ex curricular expenses of C in attending H School.
THAT the Husband’s legal practitioner shall retain C’s passport save for such time as is legitimately required for use by the Mother who shall return it forthwith after its use.
THAT the Husband and the Wife be respectively entitled to travel outside Australia with C for holiday purposes for a total of no more than six weeks per year and be not entitled to take any one continuous trip for more than three weeks and subject to satisfactory notice in writing to the other party.
THAT as and when reasonably required the parties sign all documents and do all things necessary to renew C’s passport and apply for other travel documents including visas for the child to be able to travel overseas with the parties.
THAT whichever party receives a copy of the child’s school report/s shall forthwith provide a copy/copies to the other party, or if the school is agreeable, direct the school to provide copies of such reports directly to the other party.
THAT each party shall upon receiving notification of any school or extra curricular special event (including but not limited to concerts, parent teacher interviews, excursions and camps) forthwith provide the other party with details or a copy of the notification of such event.
THAT if either party receives notice of a party or other special event for the child which will take place while the child is with the other party, he/she shall forthwith give the other party notice of such event.
THAT each party shall forthwith notify the other of any medical or other emergency affecting the child.
THAT the Husband and the Wife each be restrained from enrolling C in any further extra curricular activity unless it has been mutually agreed upon by the parties in writing.
THAT the parties do all acts and things to ensure the child attends upon Ms W for non-reportable therapy.
The parties follow all reasonable directions of Ms W as to:
(i)The child’s attendance at therapy; and
(ii)Any referral Ms W may make for the child to attend upon a psychiatrist;
(iii)Attendances of the parents at any session or consultation ;
(iv)The parties be at liberty to have input as to scheduling of appointments during this time with C.
The parties be restrained from discussing the Final Orders made this day with the child until such time as the child has attended Ms W.
The parties be responsible for the fees associated with the child’s attendances upon Ms W on an equal basis.
THAT neither party degenerate the other and/or discuss these proceedings in the presence of C nor knowingly permit anyone else to do so.
THAT the parties communicate with the other by email or text with respect to C’s arrangements and general welfare and save in an emergency they each be restrained from utilizing C to convey messages to the other regarding the said matters.
THAT C be permitted to telephone the other party at reasonable times.
THAT in the event that the parties experience difficulty or have a dispute with respect to the implementation of these Orders they shall undertake mediation with respect to the same as soon as possible.
THAT in the event that either party intends to travel interstate with C for non school days for a special event, when C is not in that party’s care pursuant to these Orders, the other shall not unreasonably withhold their consent at permitting such travel on the condition that appropriate make up time is agreed in writing.
THAT Order 9 made on the 15^th August, 2011 continue in full force and effect in relation to 2012 only save that the Husband may be obliged to change the proposed dates at his election.
THAT all extant Applications be otherwise dismissed.
THAT the appointment of the ICL be discharged
CERTIFY for Counsel
THAT pursuant to S.65, s.65DA(2), and 62B of the Family Law Act 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 Attachment A and these particulars are included in these Orders.

THE COURT NOTES

A.The Independent Children’s Lawyer has not consented to the Orders agreed between the parties due to :

The lack of trial material filed by the Mother
The lack of information relating to the Mother’s pregnancy and birth of a half sibling to the child
The Orders agreed to being counter indicated in the report of Mr P dated 2^nd November, 2011
The Orders agreed to do not take into account the views expressed by the child to Mr P

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brown & Riley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10658 of 2009

Mr Brown

Applicant

And

Ms Riley

Respondent

REASONS FOR JUDGMENT

I must look carefully at all children’s orders to make sure that they appear to be in a child’s best interests. When there is an Independent Children's Lawyer, and he or she is not supporting orders, then naturally, it makes me look even more carefully, because it raises a concern.
The circumstances of this case have been quite particular and even peculiar in the sense that so much information of such a different nature from previously has only just recently come to the ICL’s attention. That surrounds the circumstances set out in the notation to these orders.
Ms Riley gave birth to a baby, a little half-sibling of C’s, just within the last four weeks or so. No-one connected with this case had any idea of her pregnancy, including Mr P who wrote the Family Report, and Dr G who prepared a psychiatrist’s forensic assessment.
The ICL finds herself in a position, and represented through counsel today, of not having up-to-date information as to the impact of this new baby on the family, and not having the benefit of having been able to get expert evidence about that. The parents have now arrived at a decision that is not entirely in keeping with the expert’s report, and not entirely in keeping with the views expressed by the child. I take all of that into account but do accept that C has been in a shared care arrangement for some years now.
I can only hope that the most important element for her, brought out so clearly in Mr P’s report, is now to the fore for the parties. That is, that the most damaging thing for her is the conflict between her parents. If they do not re-read any other part of Mr P’s report, they should re-read the part where C talks of them fighting “like two year olds over a toy”. That is a profound observation from their daughter as to how she finds their conduct.
And it should be very clear to them too that she adores both her parents, she yearns for the time at the moment with her mother in particular. It might be the age and the stage, but in any event it in no way detracts from how close she is to her father and his family.
Given that the proposed orders are not such a major departure from the recommendation that Mr P made, given that she will be changing her school in accordance with Mr P’s recommendation, and given that both her parents, after such a long period now of this shared arrangement are both prepared to continue it, I am not going to stand in the way of it. But it really is up to the parents to make it work. If the fighting continues, then they are going to find that C will remain torn and unhappy.
If the fighting does not continue she is a very lucky little girl who has two parents who love her dearly. She will be going to an excellent school that will give her every opportunity. She will have all the fun of being in her local neighbourhood still with her mother, and in the other neighbourhood with her father. She really has got the best of all possible worlds.
I do propose making the orders. And I will make the orders in accordance with the Minutes of Final Orders which are consented to by the parents and not opposed by the ICL. I am fortified in the knowledge that he ICL does not oppose the orders, but just cannot consent in the circumstances. I will direct that the Minutes remain on the court file.

RECORDED : NOT TRANSCRIBED

The appointment of the ICL is hereby discharged.

RECORDED : NOT TRANSCRIBED

The orders will remain on the court file and they will be prepared by the solicitor for the husband to prepare them within seven days.

RECORDED : NOT TRANSCRIBED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 7 March 2012.

Associate:

Date: 7 March 2012

[2012] FamCA 288

7 March 2012

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Natural Justice

Procedural Fairness

Remedies