FAMILY COURT OF AUSTRALIA
| CHATELET & CHATELET | [2009] FamCA 765 |
| FAMILY LAW - CHILDREN - Magellan - allegations of physical and verbal abuse - substantiated - older children resistant to relationship - acceptability of risk if spend time with younger children - ongoing supervision ordered - review in year |
| Family Law Act 1975 (Cth) ss 4(1), 60B(1), 60CC(1), (3), (4) and (4A), 61DA, 65DAA(1) and (2), 65L, 74, 75(2), 75(3) Evidence Act 1995 (Cth), s 140 Child Support (Assessment) Act 1989 |
| Hemiro & Sinla [2009] FamCA 181 Bevan & Bevan (1995) FLC 92-600 Mitchell & Mitchell (1995) FLC 92-601 |
| FATHER: | Mr Chatelet |
| MOTHER: | Ms Chatelet |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 7091 | of | 2008 |
| DATE DELIVERED: | 25 August, 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 3, 4, 5 and 6 August, 2009 |
REPRESENTATION
| COUNSEL FOR THE FATHER: | Mr. Crozier-Durham |
| SOLICITOR FOR THE FATHER: | McCracken & McCracken |
| COUNSEL FOR THE MOTHER: | Mr. Howe |
| SOLICITOR FOR THE MOTHER: | Moores Legal Pty. Ltd. |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr. Grigg |
| INDEPENDENT CHILDREN’S LAWYER | Perry Weston |
Orders
That all previous parenting orders and injunctions which relate to the children of the marriage A born … September, 1993, B born … December, 1994, C born … July, 1996, D born … August, 2000, E born … November, 2002, F born … February, 2005 and G born … August, 2007 (“the children”) be discharged.
That the mother and father have equal shared parental responsibility for the children.
That the children live with the father.
That A, B and C spend such time and have such communication with the mother as is agreed between each of them and the mother.
That until 25 August, 2010 F and G spend time and communicate with the mother as follows :
(a)on each Monday, Wednesday and Thursday from 1:00 pm. until 5:00 pm.;
(b)on each Tuesday and Friday from 3:30 pm. until 6:30 pm.;
(c)on each Sunday from 11:00 am. to 5:00 pm.;
(d)on Christmas Eve from 11:00 am. to 5:00 pm. in 2009 and each alternate year thereafter;
(e)on Christmas Day from 11:00 am. to 5:00 pm. in 2010 and each alternate year thereafter;
(f)on Good Friday from 11:00 am. to 5:00 pm. in 2010 and each alternate year thereafter;
(g)on Easter Sunday from 11:00 am. to 5:00 pm. in 2011 and each alternate year thereafter;
(h)on the birthdays of D, E, F and G at times to be agreed, and failing agreement:
(i)if the birthday does not fall on a school day, from 1:00 pm. to 6:30 pm.; and
(ii)if the birthday falls on a school day, from 3:30 pm. until 6:30 pm.;
(i)on the mother’s birthday at times to be agreed and, failing agreement :
(i)if the birthday does not fall on a school day, from 1:00 pm. to 6:30 pm.; and
(ii)if the birthday falls on a school day, from 3:30 pm. to 6:30 pm.; and
(j)at such other times as are agreed.
That until 25 August, 2010 D…
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- Chatelet and Chatelet [2009] FamCA 765
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- [2009] FamCA 765
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CaseChat Overview and Summary
The court was required to determine the most appropriate parenting arrangements for the children, considering their safety and well-being. Key issues included the extent of equal shared parental responsibility, the children's living arrangements, the specific time and communication arrangements between the children and the mother, and the necessity and duration of supervised time for the mother with some of the children. The court also had to consider the impact of any proposed arrangements on the sibling relationship and the long-term needs of the children.
Brown J's reasoning focused on the paramount consideration of the children's safety, agreeing with the view that courts should be reluctant to take chances with young children's safety. The court considered the evidence regarding the mother's desire for increased time with the children and her proposed arrangements, including a potential week-about residence for the four younger children. However, the court gave significant weight to expert evidence highlighting the importance of the sibling relationship, with older children acting as stabilising and nurturing figures for the younger ones. The court found that separating the siblings would pose dangers and represent a "huge loss" for the younger children, and that the mother's proposals did not adequately reflect the children's long-term needs in this regard.
The court ordered the discharge of all previous parenting orders and injunctions. It established equal shared parental responsibility, with the children to live with the father. Specific time and communication arrangements were detailed for the older children (A, B, and C) to spend with the mother as agreed between them, and for the younger children (D, E, F, and G) with the mother, with detailed schedules and provisions for holidays and birthdays. The mother's time with the younger children was to be supervised for a period of six months, with provisions for substantial attendance by a supervisor. The court also made orders regarding communication, the mother's access to school reports, and financial maintenance payable by the father to the mother.
Orders
Orders of the court
1.
That all previous parenting orders and injunctions which relate to the children of the marriage A born … September, 1993, B born … December, 1994, C born … July, 1996, D born … August, 2000, E born … November, 2002, F born … February, 2005 and G born … August, 2007 (“the children”) be discharged.
2.
That the mother and father have equal shared parental responsibility for the children.
3.
That the children live with the father.
4.
That A, B and C spend such time and have such communication with the mother as is agreed between each of them and the mother.
5.
That until 25 August, 2010 F and G spend time and communicate with the mother as follows :
(a) on each Monday, Wednesday and Thursday from 1:00 pm. until 5:00 pm.;
(b) on each Tuesday and Friday from 3:30 pm. until 6:30 pm.;
(c) on each Sunday from 11:00 am. to 5:00 pm.;
(d) on Christmas Eve from 11:00 am. to 5:00 pm. in 2009 and each alternate year thereafter;
(e) on Christmas Day from 11:00 am. to 5:00 pm. in 2010 and each alternate year thereafter;
(f) on Good Friday from 11:00 am. to 5:00 pm. in 2010 and each alternate year thereafter;
(g) on Easter Sunday from 11:00 am. to 5:00 pm. in 2011 and each alternate year thereafter;
(h) on the birthdays of D, E, F and G at times to be agreed, and failing agreement:
(i) if the birthday does not fall on a school day, from 1:00 pm. to 6:30 pm.; and
(ii) if the birthday falls on a school day, from 3:30 pm. until 6:30 pm.;
(i) on the mother’s birthday at times to be agreed and, failing agreement :
(i) if the birthday does not fall on a school day, from 1:00 pm. to 6:30 pm.; and
(ii) if the birthday falls on a school day, from 3:30 pm. to 6:30 pm.; and
(j) at such other times as are agreed.
6.
That until 25 August, 2010 D and E spend time and communicate with the mother as follows :
(a) on each Monday, Wednesday and Thursday :
(i) if a school day from the conclusion of school until 5:00 pm; and
(ii) if not a school day, from 1:00 pm. until 5:00 pm.;
(b) on each Tuesday and Friday from 3:30 pm. until 6:30 pm.;
(c) on each Sunday from 11:00 am. to 5:00 pm.;
(d) on Christmas Eve from 11:00 am. to 5:00 pm. in 2009 and each alternate year thereafter;
(e) on Christmas Day from 11:00 am. to 5:00 pm. in 2010 and each alternate year thereafter;
(f) on Good Friday from 11:00 am. to 5:00 pm. in 2010 and each alternate year thereafter;
(g) on Easter Sunday from 11:00 am. to 5:00 pm. in 2011 and each alternate year thereafter;
(h) on the birthdays of D, E, F and G at times to be agreed, and failing agreement:
(i) if the birthday does not fall on a school day, from 1:00 pm. to 6:30 pm.; and
(ii) if the birthday falls on a school day, from 3:30 pm. until 6:30 pm.;
(i) on the mother’s birthday at times to be agreed and, failing agreement :
(i) if the birthday does not fall on a school day, from 1:00 pm. to 6:30 pm.; and
(ii) if the birthday falls on a school day, from 3:30 pm. to 6:30 pm.; and
(j) at such other times as are agreed.
7.
That as from 25 August, 2010 the mother spend such time with D, E, F and G :
(a) as is agreed between the parties; and
(b) on terms and conditions as agreed between the parties, PROVIDED THAT they shall not be more onerous (on the mother) than those contained in paragraphs (10) and (11) hereof.
8.
That the mother and father have liberty to apply in the event the parties are unable to agree on :
(a) the time the mother is to spend with D, E, F and G after 25 August, 2010; or
(b) the terms and conditions (if any) which are to apply during such time;
and if the mother does so apply, she have leave to reinstate her applications to spend unsupervised time with D, E, F and G and her application for their residence.
9.
That D, E, F and G communicate with the mother :
(a) by telephone between 7:00 pm. and 7:30 pm. on each day, the telephone call to be initiated by the father; and
(b) as otherwise agreed.
10.
That the mother’s time with the children pursuant to paragraphs (5) and (6) hereof be supervised for a period of six months from this date by one of the following people :
(a) Ms BT;
(b) Ms CN;
(c) Ms AS;
(d) Ms DO;
(e) Ms HU;
(f) Mr HU;
(g) Ms ME;
(h) Ms OO; or
(i) such other person as is agreed between the parties.
11.
That commencing on 25 February, 2010 :
(a) Ms BT or another person agreed between the parties be in substantial attendance during each period of the mother’s time with D, E, F and G; or
(b) in the event Ms BT is unavailable and the parties are unable to agree on another person, the mother’s time with D, E, F and G be supervised by another of the people referred to in paragraph (10) hereof.
12.
That notwithstanding the provisions of paragraphs (10) and (11) hereof, the mother and father may, at any time, agree that a period of the mother’s time with D, E, F and G or any of them be unsupervised or that Ms BT or other agreed person not be in substantial attendance.
13.
That subject to any agreement to the contrary between the parties and the person supervising a period of time, or being in substantial attendance during a period of time, D, E, F and G shall be collected from either their home or from school (where applicable) and returned to their home.
14.
That subject to any agreement to the contrary between the parties, the times in paragraphs (5) and (6) hereof be suspended :
(a) in the second week of each school term holiday period; and
(b) from 26 December to 15 January in each year.
15.
That each of the parties keep the other advised of his/her residential address and telephone number.
16.
That the mother be and is hereby restrained from applying any form of corporal punishment to the children or any of them.
17.
That the mother and the father by themselves, their servants and agents be and are hereby restrained from :
(a) denigrating the other or allowing any other person to denigrate the other in the presence or hearing of the children; and
(b) discussing the litigation or allowing any other person to discuss the litigation in the presence or hearing of the children, save that the father be at liberty to advise the children of the effect of the orders made herein.
18.
That each of the parties advise the other forthwith in the event a child suffers a significant accident or illness whilst in his or her care and authorise the other to discuss the child’s injury or illness, treatment and prognosis with each treating professional.
19.
That the consent of each of the parties be required :
(a) to the enrolment of F and G in a school; and
(b) to any change of enrolment (of school or kindergarten) for any of the children.
20.
That the mother be at liberty to receive (at her expense, if any) a copy of :
(a) each kindergarten or school report for D, E, F and G;
(b) each kindergarten or school photo of D, E, F and G;
(c) school publications routinely provided to parents in respect of D, E F and G;
and as soon as practicable the mother serve a sealed copy of this order on the principal of each school or kindergarten attended by a child and it shall be sufficient authority to the principal to provide the items described.
21.
That the mother may consult with school or kindergarten principal and teachers in respect of D, E, F and G’s educational progress and development PROVIDED THAT :
(a) an appointment shall be made for each interview; and
(b) such appointment not be made for a time when it is reasonably foreseeable that A, B or C could be at the school, kindergarten or other place where such interview is to occur.
22.
That pursuant to section 65L(1) of the Family Law Act 1975 (“the Act”) :
(a) compliance with these orders be supervised, as far as practicable, for a period not exceeding 12 months by a family consultant nominated by the Manager, Child Dispute Services of this Registry of the Court; and
(b) the nominated family consultant give the parties such assistance as is reasonable requested in relation to compliance with, and the carrying out of the parenting orders;
and that such supervision be reportable in the event :
(c) another application is filed pursuant to the Act; and
(d) the judicial officer before whom it is listed requests such a report.
23.
That if consistent with her commitments and availability IT IS REQUESTED that Ms. W be the nominated family consultant.
24.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, upon determination of the appeal.
25.
That the father pay for the maintenance of the mother the sum of $75 per week, in monthly instalments of $325, the first of such payments to be made on 1 September, 2009, and monthly thereafter, into a bank account to be nominated by the mother in writing.
26.
That the maintenance to be paid pursuant to paragraph (25) hereof be varied on 1 October in each year (“the review date”) commencing on 1 October, 2010 to such sum as shall be determined by multiplying the maintenance being paid on the review date by the fraction N/B where “B” is the Consumer Price Index for Melbourne (All Groups) published by the Australian Bureau of Statistics (“CPI”) in respect of the quarter year ended on the day twelve months prior to the review date, namely 31 September, 2009; and “N” is the CPI in respect of the quarter year ending on the day immediately preceding the review date.
27.
That this order as to variation in accordance with the Consumer Price Index is without prejudice to the right of the parties in any year to make such application as he/she may be advised for any other variation of the maintenance which he/she may claim to be appropriate by reason of his/her then prevailing financial circumstances.
28.
That maintenance be paid to the mother pursuant to paragraphs (25) and (26) hereof until the first of the following:
(a) 25 August, 2019;
(b) the mother obtains fulltime employment which is maintained for a month; or
(c) the mother obtains and maintains for a month any employment in respect of which she is paid no less than a sum equivalent to $750 per week (having regard to CPI increases between this date and the relevant date).
29.
That all extant applications be otherwise dismissed.
30.
That these proceedings be removed from the List of matters awaiting finalisation.
31.
That pursuant to s.62B and s.65DA(2), 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
32.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
On the mother’s behalf it was put that it was very difficult to arrange supervisors and that it is demeaning to be required to submit to long term supervision. Ms. W showed a healthy and robust disregard for these factors; she said her focus was on the safety of the children. If a child’s time with a parent is supervised, without necessity, the child could get a signal that the parent was not safe, which would not be good for their relationship. But the central issue remains an assessment of risk. The sense of Ms. W’s evidence was that the court should be reluctant to take chances with young children’s safety, a stance with which I agree. The ICL’s submission that the court “should not set the bar too high” may have been a counsel against requiring perfect parenting but the emphasis must remain on an assessment of risk. If the risk is unacceptable, “the bar” must be set with that finding in mind. (d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :(i) either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; Asked by the court about her long term plans, the mother said she hoped to implement a week and week about residence arrangement for the four younger children, while allowing the three older children to choose with whom they lived and what time they spent with the other parent. She did not propose the implementation of such an arrangement at the end of the twelve month period of unsupervised time, saying there would need to be some overnight time introduced first. Asked about the impact of separating the siblings, she said that the four who lived with her would be with the other three every second week, and would be able to see them at school. In her 2008 report Ms. W expressed the opinion that splitting the children would pose dangers for them; the older siblings are profoundly important to the stability of the younger children. Cross-examined she reiterated that in strong terms. The relationship between the children is fundamental. The older children are strong, stabilising and nurturing figures in the younger children’s lives. Ms. W said she would be extremely concerned about any separation of siblings. To separate them would be “another huge loss” for the younger children. It is apparent the mother has been devastated by the loss of the children and it is probable that every day they do not live with her has been deeply distressing to her. Her application, until the trial commenced, was for all seven children to live with her and it might be said that a proposal for a shared residence arrangement in respect of the younger four is indicative of a significant change and preparedness to be more flexible. That said, the mother could have been in no doubt of the expert evidence of the likely effect on the children of separation from siblings. While Dr. KN was not specifically asked about this question, he volunteered at one point that the children are a family and need to live together; nothing said by him could be said to be supportive of splitting the children, even in every second week. The mother’s proposal, whether it was to be implemented in 2010 or later, does not suggest a capacity to reflect on the children’s long term needs.