Cadet and Dance

[2008] FamCA 625

FAMILY COURT OF AUSTRALIA

CADET & DANCE [2008] FamCA 625

FAMILY LAW  -  CHILDREN – With whom a child lives – With whom a child spends time -  Magellan  -  Final orders

Family Law Act 1975 (Cth)

HUSBAND: MR CADET

WIFE: MS DANCE

INDEPENDENT CHILDREN’S LAWYER: Saines & Partners

FILE NUMBER: MLC 11547 of 2007

DATE DELIVERED: 15 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 15 July, 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr M.I. Grant

SOLICITOR FOR THE HUSBAND: Heinz & Partners

COUNSEL FOR THE WIFE: Ms J.P. Spehr

SOLICITOR FOR THE WIFE: BJT Legal

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Mr M.L. Pavone

Orders

IT IS ORDERED, with the consent of the husband and the Independent Children’s Lawyer:

1. That all previous parenting orders in relation to the children of the marriage D born … December 1994, M born … February 1997, B born … August 1999 and T born … February 2002 be and are hereby discharged.

2. That the Husband and Wife have joint parental responsibility for the said children.

3. That the child D live with the Husband.

4. That the children M, B and T live with the Wife.

5. That D spend time with and communicate with the Wife as agreed between them.

6. That M and T spend time and communicate with the Husband as follows:

   (a)from the conclusion of school Friday to the commencement of school Monday each alternate weekend commencing on the 18 July 2008;

   (b)each alternate Thursday from the conclusion of school until the commencement of school Friday commencing on the 24 July 2008;

   (c)for one half of all school term holidays at times to be agreed and in default of agreement, the first half;

   (d)for one half of Christmas school holidays at times to be agreed between the parties and in default of agreement, from 5.00pm on Boxing Day;

   (e)on the children's and Father's birthday:

(i)         if a school day, from 4.00pm to 7.00pm.

(ii)        if a weekend day, from 12.00 noon to 5.00pm;

(f)at Christmas:

(i)          from 5.00pm Christmas Eve to 4.00pm Christmas Day in 2008 and each alternate year thereafter;

(ii)         from 4.00pm Christmas Day to 5.00pm Boxing Day in 2009 and each alternate year thereafter;

(g)at each other times as agreed between the parties.

1. The Husband's time with the children be suspended on the children's and Mother's birthday:

   (a)       if a school day from 4.00pm to 7.00pm;

   (b)if a weekend from 12 noon to 5.00pm.

2. That the Husband and Wife do all such acts and things and sign all such documents as are necessary to ensure that the child B attend upon a Counsellor nominated by the Independent Children's Lawyer to assist B with the implementation of these orders.

3. That the Counsellor be at liberty to discuss the progress of counselling for B with the Husband and Wife.

4. That the child B spend time and communicate with the Husband as follows:

   (a)from 10.00am to 5.00pm on Saturday and Sunday each alternate weekend commencing on 19 July 2008 and concluding on 17 August 2008;

   (b)from 10.00am Saturday to 5.00pm Sunday each alternate weekend commencing on 30 August 2008 and concluding on 27 September 2008;

   (c)from after school Friday to 5.00pm Sunday each alternate weekend commencing on 10 October 2008 and concluding on 7 November 2008;

   (d)from after school Friday to the commencement of school Monday each alternate weekend commencing on 21 November 2008;

   (e)for the 2008 Christmas holidays for the two weekends following Christmas Day from 5.00pm Friday to 10.00am Monday;

   (f)as at from the Term 1, 2009 school holidays at the same times as set out in paragraphs 2(c) and 2(d) hereof;

   (g)on special days at the same times as set out in paragraphs 2(e) and 2(f) hereof.

5. That to facilitate changeovers other than when changeovers take place at the children’s school, the Husband collect the children from the driveway of the Wife’s residence at the commencement and the Wife collect the children from the driveway of the Husband’s residence at the conclusion of such times.

6. That the times the children are to spend time with the Husband pursuant to paragraphs 6(a), 6(b), 10(a), 10(b), 10(c) and 10(d) hereof be suspended during school term holidays and resume on the first weekend of the following term.

7. That the order appointing the Independent Children's Lawyer be discharged.

8. That each party notify the other as soon as is practicable of any medical emergency involving any of the children whilst in their respective care.

9. That the Husband and Wife authorise the school that the children attend to forward to the other copies of school reports, newsletters, notices and photo order forms in relation to the children living with them.

10. That each of the Husband and Wife be permitted to attend all school, sporting and cultural events that parents are invited to attend.

11. That otherwise all applications be dismissed.

12. That the Independent Children’s Lawyer’s application for costs against the husband be dismissed.

13. That pursuant to s. 65DA(2) and s.62B 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 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.

NOTATION:

The Respondent (wife) neither consents nor opposes these orders being made.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 11547 of 2007

MR CADET

Husband

And

MS DANCE

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter concerns the parties’ four children, aged between thirteen and six.  It has been in the Magellan list, which means it has been judge managed for some time.  The court has had an opportunity to read not only the material relied on by the parties but also the Department of Human Services report dated 9 January 2008 and the family report from Mr S which was released earlier this year. 

2. Yesterday, counsel for both parties and the independent children's lawyer viewed a VATE tape and listened to a record of interview.  Late in the day, they resolved the competing parenting applications.  Today it is sought that orders be made with the consent of the husband and the independent children's lawyer.

3. The wife does not formally consent or oppose the orders being made.  She has acknowledged in writing the minute of proposed orders and her counsel has confirmed that no submission is made on her behalf that these orders are not in the best interests of the children.

4. The evidence of the parties has not been tested and is, of course, at odds in many respects.  Nevertheless, having read that evidence and the evidence of the independent experts, I am satisfied that these orders are in the best interests of D, M, B and T and that they should be made by the court, thus ending the litigation between the parties.

5. The children’s parents will have joint parental responsibility for them.  The orders acknowledge that the arrangements for B need to be a little different to those for the siblings with whom he lives, being M and T.  D lives with the husband and at 13 ½, is able to make his own arrangements to see his mother.  The orders should ensure that all the children maintain meaningful relationships with their parents.

6. In this matter, there will be final orders with the consent of the husband and the independent children's lawyer in the terms of the minute which has been signed by both parties and by counsel for the independent children's lawyer.

7. An application for costs is made by counsel for the independent children's lawyer.  The application is that the husband pay one-half of the independent children's lawyer's costs, as the husband is in paid employment.  The ICL is required to make that application and there are some cases in which it is appropriate that costs orders be made in those circumstances.

8. I have no doubt whatsoever that the involvement of an experienced independent children's lawyer in Mr Webb, and the involvement of experienced counsel for him in the trial, played a pivotal role in the resolution of this matter.  It was a complex matter and indicative of the range of matters that come into the Magellan list.  It demonstrates that resolution of an allegation of sexual abuse does not necessarily resolve the complex issues with which families struggle.

9. I am not satisfied in all the circumstances of this case that it would be appropriate to order that the husband make a contribution to the independent children's lawyer's costs.  That application is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown

Associate: 

Date: