CAREY & PRESCOTT

[2015] FamCA 497

FAMILY COURT OF AUSTRALIA

CAREY & PRESCOTT [2015] FamCA 497

FAMILY LAW – CHILDREN – Final orders by consent – Where the parties were able to agree upon final parenting orders which they seek to be made by consent – Where the Court is satisfied that the orders proposed by the parties are in the best interests of the child.

APPLICANT: Mr Carey

RESPONDENT: Ms Prescott

INDEPENDENT CHILDREN’S LAWYER: Ms Barbara Fox

FILE NUMBER: BRC 377 of 2013

DATE DELIVERED: 24 June 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 24 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: Murray Bucknall Legal

COUNSEL FOR THE RESPONDENT: Mr Streit

SOLICITOR FOR THE RESPONDENT:	Landmark Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Hodges

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders

IT IS ORDERED THAT:

1. The hearing of these proceedings listed for three (3) days commencing on 24 June 2015 be vacated.

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 FURTHER ORDERED THAT:

1. All outstanding applications be otherwise dismissed and removed from the pending cases list.

1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and        comply with an order, are set out in the document entitled “Parenting orders –       obligations, consequences and who can help”, a copy of which is annexed to    these Orders.

IT IS DIRECTED THAT:

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

MINUTES OF CONSENT

1. That all previous parenting plans and parenting Orders be discharged

2. That the child B (DOB …) live with the Father.

3. The Parents have equal shared parental responsibility for decisions in relation to the major long-term issues concerning the child’s education both current and future, religious and cultural upbringing, health and changes to his living arrangements that may make it significantly more difficult for the child to spend time with the parents or either of them.

4. In the exercise of their equal shared parental responsibility concerning the child in relation to decisions concerning those major long-term issues the Parents are to consult each other and make a genuine effort to come to joint decisions.

5. In relation to such consultations:

   a.the Parent wishing to make a proposal make it in writing to the other parent, setting out the advantages of the proposal perceived by that parent and reasoning supporting it.

   b.the other Parent respond in writing to the proposal by either agreeing with it or making a different proposal, setting out the advantages of any different proposal and reasoning supporting it

   c.if after such consultation a joint decision is not able to be made the  parents are to consult a family law dispute resolution practitioner to assist them to resolve the issue.

6. The Parents each be responsible for the child’s day to day care while the child is with each of them.

7. That the child spend time with and communicate with the Mother at all times as agreed between the Mother and the Father but failing agreement at least:

   i.Each Tuesday from 9am and 4pm; and

   ii.From  12pm Friday to 12pm Saturday each week

   CHRISTMAS 2015/2016/2017

   iii.From 10am to 2pm Christmas  Day

   iv.The Parent who is not caring for the child on the child's birthday will spend from  9am to 12noon with the child

   COMMENCING 1 JANUARY 2017 TO 1 JANUARY 2018

   v.   From 4pm Tuesday to 4pm Wednesday in week 1; and

   vi.   From 4pm Thursday to 4pm Saturday in week 2

   THEREAFTER

   vii.In week one (1) from after school Thursday to before school on Monday and each alternate week thereafter;

   viii.In week two (2) from after school Wednesday to before school on Thursday and in each alternate week thereafter

   ix.One half of the Easter, June/July and September/October school holidays in each year with the Mother to have the first half in odd numbered years and the last half in even numbered years

   x.Commencing in the 2018 Christmas School holidays two weeks on and two weeks off with each Parent with the Mother to have the first two weeks in odd numbered years and the second two weeks in even numbered years

   xi.From 2pm Christmas Eve until 11am Christmas Day in odd numbered years; and

   xii.From 11am Christmas Day to 2pm Boxing Day in even numbered years

   xiii.Mother's Day the child will be with the Mother from 9am to 5pm

   xiv.Father's Day the child will be with the Father from 9am to 5pm

   xv.That all weekend time be suspended during holiday times

8. That unless as otherwise provided for in these Orders or as agreed between the Parents in writing the child to be collected by the Mother or the Maternal Grandmother at the commencement of the time and the Paternal Grandparents will collect the child at the conclusion of the time save that when the child commences school all changeovers will occur at the Child’s school or pre school at collection of the child from with home the child will delivered to the front gate by the respective carer

9. That the parents continue with the use of a communication book in relation to the child’s medical, dental and other allied health practitioner appointments and the communication book is to be kept up to date by each party

10.That the Mother continue to attend upon her treating medical physicians, including Dr C (or any other treating psychiatrist) as and when directed and take all prescribed medication for her mental health wellbeing and stability

11.That neither party is to denigrate the other to or in the presence or hearing of the child and use their best endeavours to ensure that no third party denigrate the other to or in the presence or hearing of the child

12.That neither party is to discuss these proceedings to or in the presence or hearing of the child

13.That each party is to keep the other appraised of their current residential address and contact details and advise of any change within 48 hours

14.That each party is to advise the other immediately should the child require any emergency medical treatment while in their respective care

15.That these Orders be sufficient authority for each party to attend all school parent teacher meetings, extra curricular activities and all other school functions that parents normally attend

16.That these Orders be sufficient authority for each party to discuss any of the child's medical issues and obtain copies of any report from the child’s treating medical practitioners

17.That within 28 days from the date of Order the Parties attend upon Dr D Psychologist E Street, Suburb F (Telephone …) for Mediation with a view to gaining insight into their communication difficulties and assist in strategies to manage parenting arrangements which relate specifically to parenting issues for the child

18.That neither Parent will provide to Dr D copies of any documents, letters, medical reports or such other material without the consent of the other Party

19.That the parents are to meet one half of the costs associated with their attendance upon Dr D

20.That within 28 days from the date of Order the Mother engage with Dr G, Clinical Psychologist H Street, Suburb H (Telephone …)  to address her feelings of loss and grief with regard to the breakdown of her relationship with the father, Mr Carey

21.That pursuant to S 121 of the Act a copy of the Family Reports undertaken by Ms K be provided to Dr D and Dr G

22.That the Parties agree for the Father to obtain from the Mother’s treating psychiatrist from time to time (at present Dr C) a report as to the Mother’s mental functioning which may affect her ability to parent the child not less than each three (3) months at the Father’s expense

23.The Mother is to keep the Father advised as to the name and contact details of her treating medical practitioners, including mental health professionals

24.That the Order for the appointment of the Independent Children’s Lawyer be discharged upon the making of these Orders.

NOTATIONS

A.     That the Maternal and Paternal grandparents also be involved in the counselling with Dr D at his sole discretion

B.     It is noted that the Parents have been able to negotiate and be flexible with regard to B's time with the Mother due to her Work Roster

C.     Nothwithstanding Order 5(c) above, if the Parents are able to address any “decision” making matter through Dr D in the first instance then this would be the preferred option

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carey & Prescott 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 377 of 2013

Mr Carey

Applicant

And

Ms Prescott

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Today was to be the first of three days of the trial of parenting proceedings concerning the child B born in 2012.  In the event, the child’s parents, each of whom are represented by solicitors and counsel, have spent the day together with the Independent Children’s Lawyer (“ICL”) appointed to independently represent the child’s interests in the proceedings and her counsel in negotiations to achieve agreed terms of final parenting orders now provided to the Court.  The material for trial includes a body of expert evidence. 

2. Whilst that evidence is not tested by any cross-examination it nevertheless informs as to the central issues relevant to parenting orders to be made in the child’s best interests.  Having regard to the, albeit untested, evidence relied upon by each party; the expert evidence referred to; the evidence in the ICL’s case; and the fact that the ICL supports the making of final parenting orders in the terms agreed, I am satisfied that it would be in the child’s best interests to make orders by consent in the terms agreed to by his parents and the ICL. 

3. The Court acknowledges the obvious effort and industry that has been applied by the parties and by the ICL in achieving this outcome.  the child is only two and a half years old.  There is a long time to come so far as the co-parenting of him is concerned.  It augurs well for the challenges that the parents will confront in that co-parenting for such a lengthy period that they embark upon it having been able to reach agreed terms of final orders going ahead rather than subjecting themselves and each other to an adversarial trial process which may not have augured so well for that future. 

4. I therefore congratulate the parties on being able to achieve what they have achieved in the child’s best interests by reaching agreement as to the terms of the parenting orders rather than deferring to the Court for the imposition by the Court upon them of parenting orders. 

5. As I say, the Court acknowledges the effort and industry of the lawyers involved and acknowledges the efforts of the ICL and her counsel appointed to independently represent the child’s interests in these proceedings in assisting in achieving this outcome. 

6. For the record, Order 2 will read that the child B born in 2012, will live with the father.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 24 June 2015.

Associate:

Date:  30 June 2015