Burwood and Burwood

[2010] FamCA 607

FAMILY COURT OF AUSTRALIA

BURWOOD & BURWOOD [2010] FamCA 607

FAMILY LAW – CHILDREN – Orders made after Notice of Discontinuance filed

Family Law Act 1975 (Cth)

APPLICANT: Mr Burwood

RESPONDENT: Ms Burwood

INDEPENDENT CHILDREN’S LAWYER: Ms Adcock

FILE NUMBER: BRC 5599 of 2008

DATE DELIVERED: 18 June 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 18 June 2010

REPRESENTATION

THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: Anthony Black Family Law Services

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland, Bundaberg

Orders

IN RESPECT OF PARENTING ORDERS

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children's Lawyer be discharged.

4. Pursuant to s 65DA(2) and s 62B, 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.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

IN RESPECT OF PROPERTY ORDERS

IT IS ORDERED THAT

1. The mother’s Application for Property Orders is adjourned to a Registrar on such dates and times as may be advised for the making of all such directions as might be considered appropriate for the further progress of this matter, and that unless otherwise ordered by the Registrar, such hearing shall be conducted by telephone.

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT

1. That the children J born … June 1999 and L born … September 2000 live with the Mother.

2. That the Mother have sole parental responsibility for the children.

3. That the children spend time with the Father as agreed between the parents.

4. That the Father and the Paternal Grandparents shall be permitted to send letters, cards, gifts and photos to the children.

5. The Mother to give the Father a postal address for the purposes of facilitating these orders.

6. That the Father and Paternal Grandparents are to provide to the Mother a postal address for the children to reciprocate and update the Mother with any changes within fourteen (14) days.

7. That the Mother is at liberty to open and view any letters, cards, gifts, photos or other correspondence received from the Father or Paternal Grandparents and provided that such material does not provide inappropriate material the Mother is to hand to the children such letters, cards, gifts, photos or other correspondence to the children and they be encouraged to read, keep and respond to same.

8. That the Paternal Grandmother be permitted to telephone the mobile phone number provided by the Mother to speak to the children on Easter Sunday, Christmas Day and on the children’s birthdays between 5.30pm and 6.00pm. The Mother is to provide to the Paternal Grandmother a mobile telephone number for this purpose.

9. The children be at liberty to telephone the Father whenever they express a wish to do so. The Mother will facilitate such a call to be made to the Father by the children.

10. That the Father shall not be permitted to attend the children’s school unless otherwise agreed with the Mother.

11. The Father is permitted to contact the children’s school/s and discuss with their teachers the children’s educational progress and to arrange to receive (at his cost) copies of the children’s school photographs.

12. The Mother will notify the Father of the schools attended by the children and will provide to the Father copies of the children’s school reports upon their issue.

13. The Motherss and the children’s residential address shall remain sealed to the Father and Paternal Grandparents.

14. The Mother is to forthwith notify the Father of any serious medical injury or life threatening emergency that the children may suffer and will provide to the Father details of the treating medical practitioners or other service providers. This order will be an authority to allow the Father to discuss with the treating medical practitioners or service provider the children’s condition.

15. That neither parent shall denigrate the other parent or member of the other parents household or family to or within the hearing or presence of the children and shall not allow any other person to do so.

16. That neither parent shall discuss any Court proceedings between the Mother and Father or any other adult issues in which the Mother and Father are in dispute with or in the hearing or presence of the children when the children are in that parents care and shall not allow any other person to do so.

17. That the order 1(a) and 17 of the Orders made on 17 December 2009 are not discharged by these Orders and remain in force.

18. That the Independent Children's Lawyer be discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5599 of 2008

MR BURWOOD

Applicant

And

MS BURWOOD

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter commenced on 20 June 2008 at which time the father of the children, the subject of proceedings – J, born in June 1999, and L born in September 2000 – sought orders that the children live with him and spend time with the mother.  The matter has a somewhat chequered litigation history in the time since.

2. Ultimately, proceedings before the Federal Magistrates Court were transferred to this court and listed in this court’s Magellan list by reason of the nature of the allegations made within the proceedings.

3. On 23 September 2009, the mother filed a Form 4 (Notice of Abuse) alleging sexual abuse.  Since that time, there has been a Children and Parents Issues Assessment report prepared by family consultant Ms D on 24 September 2009, in which she recommended a Family Report.

4. After procedural hearings within the Magellan list, Principal Registrar Filippello made interim orders on 17 December 2009 by the terms of which the mother was to return the children to live in Brisbane in the former matrimonial home; the children live with the mother; the mother has sole parental responsibility and the father has supervised time with the children for two hours every second Saturday at the G contact centre.  Orders were also made pursuant to section 65L of the Act, and a request made for a report from the Department of Child Safety pursuant to section 69ZW of the Act.

5. On 17 February 2010, a report was filed by Mr N who is a psychologist.  Mr N raised a number of troubling issues with respect to the best interests of these children.  Included among them is an assertion that, if allegations made by the mother are true, it is harmful to force the children to spend time with the father.  In that report, Mr N recommended communication by correspondence.

6. Not long thereafter, a Family Report prepared by family consultant Ms D was filed.  That report recommended that it was not in the best interests of the children to have face to face time with the father and that there should be very limited telephone communication with the children.

7. At that time, it was noted that the former matrimonial home had been significantly damaged by fire and was unliveable.  The Family Report of Ms D indicated that, should the relevant components of the justice system find that the family home was damaged by arson at the hands of the father, then she would have significant concerns with respect to the mother and children’s safety in light of the history of the matter.

8. Approximately four weeks after that report was filed, the father filed a Notice of Discontinuance on 29 March 2010.

9. Whilst the matter has been in the Magellan list, the Independent Children’s Lawyer, Ms Adcock, has been seized of the issues in relation to these children.  Ultimately, and consequent upon the father filing that Notice of Discontinuance, discussions have taken place between the Independent Children’s Lawyer and the mother.  As a result of those discussions, the Independent Children’s Lawyer and the mother are agreed as to the terms of orders which are in the best interests of these children. 

10. The father is not a party to those orders, he having not participated in the process just referred to, consequent upon the discontinuance of his application.

11. I have now carefully read the orders proposed by both the mother and the Independent Children’s Lawyer. 

12. The orders provide that the children are to live with the mother and that she is to have sole parental responsibility in respect of them.  The orders also provide that the only time that the father should spend between the children is as agreed between the parents and provision is made for there to be cards, gifts and the like, with the mother at liberty to open any letters, cards, gifts, photos, or other correspondence received from the father or paternal grandparents.

13. The orders also contain other clauses which might be seen as protective of the mother and children.  In particular, a clause provides that the father shall not be permitted to attend the children’s school unless otherwise agreed with the mother.

14. The orders do, however, provide for involvement in the children’s lives indirectly by the father by reason of him being permitted to contact the children’s schools and discuss with their teachers the children’s education progress and to arrange to receive at his cost copies of the children’s school photographs.

15. So too, provision is made for the father being notified in the event of emergent events such as serious illness and the like.

16. Cognisant as I am of the Objects and Principles of the legislation and, in particular, Part VII, and noting that the proposed orders provide in specific terms no face to face time between the children and their father and provide for the mother to have sole parental responsibility, I am nevertheless satisfied that, in the particularly troubling circumstances of this case, the orders are in the best interests of the children.

17. I order accordingly.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  20 July 2010