Cave and Cave
[2011] FamCA 866
FAMILY COURT OF AUSTRALIA
| CAVE & CAVE | [2011] FamCA 866 |
| FAMILY LAW – CHILDREN - Parental Responsibility – live with spend time with |
| APPLICANT: | Ms Cave |
| RESPONDENT: | Mr Cave |
| FILE NUMBER: | (P)NCC | 729 | of | 2009 |
| DATE DELIVERED: | 9 November 2011 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 16 September 2011 |
REPRESENTATION
| APPLICANT: | No appearance |
| SOLICITOR FOR THE APPLICANT: | Catherine Henry Partners Mr Rugendyke |
| ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms K O’Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That the father and the mother have equal shared responsibility for the children B born … 2000 and C … born 2003 (“the children”).
That the children live with the father.
Subject to compliance by the mother with Order 4 the children shall spend time with the mother in the home of the maternal great-grandmother as follows:
3.1on each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday;
3.2from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in even numbered years and from 3.00 pm Christmas Day until 3.00 pm Boxing Day in odd numbered years;
3.3on Mother’s Day from 10.00 am until 5.00 pm; and
3.4from 4.00 pm until 7.00 pm on each child’s birthday.
The mother must confirm by text message 48 hours in advance of each period of time that she is intending to spend time with the children AND IN THE EVENT that the mother does not confirm then the father is entitled to assume that the period of time will not be taken up by the mother and he need not make the children available.
That the mother’s time with the children is suspended during the following occasions:
5.1from 3.00 pm Christmas Day until 3.00 pm Boxing Day in even numbered years and form 3.00 pm Christmas Eve until 3.00 pm Christmas Day in odd numbered years;
5.2on Father’s Day from 10.00 am for the balance of that weekend period;
5.3for holidays with the father for periods of up to four weeks per year provided that the father gives the mother notice in writing (including by email) of the dates of the proposed holiday and where the holiday will be.
That for each period of time the father shall deliver the children to and collect the children from the home of the maternal great-grandmother.
That the mother be at liberty to communicate by telephone with the children at any reasonable time.
The father shall permit the children or either of them to telephone the mother at any reasonable time and shall ensure privacy in the home for that conversation.
The mother is restrained from:
9.1consuming alcohol whilst the children are spending time with her;
9.2removing the children from the care of the father;
9.3removing the children or either of them from D School or subsequent school either child may attend, without the prior written consent of the father;
9.4changing the enrolment of the children or either of them at D School other than for progression to high school in consultation with the father.
That for the purposes of treatment by a medical health professional/ psychologist/qualified drug and alcohol counsellor, the mother may provide to the treating practitioner copies of the reports of the Family Consultant, Ms E, dated 30 November 2009, 23 December 2009 and 1 April 2011.
The Independent Children’s Lawyer shall provide a copy of these orders to D School and is thereafter discharged.
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.
IT IS NOTED that publication of this judgment under the pseudonym Cave & Cave 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 NEWCASTLE |
FILE NUMBER: (P)NCC 729 of 2009
| Ms Cave |
Applicant
And
| Mr Cave |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Mr and Ms Cave are the parents of two sons B and C. The boys are aged ten and eight years of age.
It is two years since interim orders were made for the boys to live with their father. The final hearing of the matter on an undefended basis was on 16 September 2011. The mother stopped participating in the Court proceedings after the release of the family report of Ms E, Family Consultant in April 2011.
On 16 June 2011 the matter was set down on the basis the hearing would proceed undefended if the mother did not attend. In August 2011 solicitors for the mother filed a Notice of Ceasing to Act. There was no appearance by or on behalf of the mother. I am satisfied that she was aware of the hearing and chose not to attend.
Final orders
The children have continued to do well in the care of the father. They are progressing well at school. B no longer needs outside tutoring.
The father has reduced his shifts so that he works five days less over a five week cycle. He is more available to the boys as a result. Although the father is still assisted in the care of the boys by his own mother who moved to live in the F Town area, he is not as reliant on her assistance. No doubt the boys continue to benefit from and enjoy the presence of their paternal grandmother.
The mother has maintained contact with the boys but not consistently. Probably they are both disappointed but it is C who reveals his feelings when the mother chooses not to see them. Sometimes the mother tells the boys of planned activities such as fishing or attending a movie, but the activities are not undertaken. Both boys have felt and expressed disappointment.
I am satisfied that the father does his best to protect the relationship of the children with their mother. He does not criticise her in their presence or complain of disruption to his own plans with Ms G, when the boys do not go with their mother.
For that reason it is appropriate for the mother to confirm in advance that she will be taking up each period of time. There must be times when the children give up other opportunities such as birthday parties and social sporting events in order to spend time with their mother. Advance notice will benefit them.
There is evidence that the children have recently been taken to a house in D Town for time with their mother. Many others were present. On one of these occasions the mother was at the house too sick to look after them.
Repeatedly being let down will damage their relationship with their mother. Consistency by her will restore those relationships.
Parental responsibility
The mother sought equal shared parental responsibility. The Independent Children’s Lawyer supported the order being made.
The parties do communicate from time to time. The mother has personal difficulties with her behaviour, abuse of alcohol and depression[1]. However the fact that the mother is inconsistent about seeing the children does not mean that she does not love the children or that she is indifferent to their progress. She should be a part of their lives to the maximum extent consistent with their welfare and her own capacity.
[1] Family Report dated 1 April 2011
Accordingly I have made an order that the parties do share parental responsibility.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 9 November 2011.
Associate:
Date: 9 November 2011
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