Curtain & Finch (No 2)

[2014] FamCA 227

FAMILY COURT OF AUSTRALIA

CURTAIN & FINCH (NO. 2) [2014] FamCA 227

FAMILY LAW – CHILDREN – FINAL PARENTING ORDERS – Whether proposed consent orders should be made – whether proposed consent orders are in the best interests of the children.

Family Law Act 1975 (Cth) ss 60B, 60CC, 69ZW

APPLICANT: Ms Curtain

RESPONDENT: Mr Finch

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 3642 of 2013

DATE DELIVERED: 31 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 31 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchings

SOLICITOR FOR THE APPLICANT: Cinque Oakley Senior

COUNSEL FOR THE RESPONDENT: Ms Theoharopoulou

SOLICITOR FOR THE RESPONDENT: Quintessential Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

It is ordered that:

1. The subpoena issued by the Independent Children’s Lawyer to the Department of Human Services on 25 March 2014 be discharged.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated.

3. BY CONSENT there be final parenting orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

4. The solicitor for the applicant mother engross the minutes and deliver them by electronic transmission to my Associate within seven days.

5. All extant applications be otherwise dismissed and the matter be removed from the list of pending cases.

6. 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 ordered by consent that:

1. All previous Orders be and hereby discharged.

2. The parties have equal shared parental responsibility for the children. H born … 2006, S born … 2007 and W born … 2008 (“the children”).

3. The children live with the parties on a week about basis with changeover to occur at 4:15pm on the Friday and with changeover to be at the fence line of the party’s residence who has had the children for the previous week, noting they are currently with their Mother and the Father’s week about to commence 4/4/2014.

4. Each parent be at liberty to communicate with the children by telephone, Skype or other electronic means each Monday and Wednesday initiated by the parent who the children are not living with that week between 5:00pm and 7:00pm.

5. The children or any of them be at liberty to telephone either parent at all reasonable times with the parent caring for them to facilitate the phone call.

6. The Mother be restrained by injunction from allowing the children or any of them, to come into the physical presence of Mr Curtain until the children respectively are 17 years old, without the express prior written consent of the Father or further Court Order.

7. Unless otherwise agreed to in writing, all changeovers take place at the fence line of the parties’ respective home/s.

8. Each party be restrained by injunction from denigrating the other in the presence or hearing of the children or any of them and or permit anyone else to do so.

9. Each party be restrained by injunction from discussing these proceedings (save to inform them of the outcome) with the children, or any of them, or allowing them to see any material filed in, or produced in relation to these proceedings and or permit anyone else to do so.

10. Notwithstanding anything to the contrary herein the children;

    a)live with their Father from 7:00pm Christmas Day to 7:00pm Boxing Day each year and the entirety of the Father’s Day weekend until the commencement of school Monday.

    b)live with their Mother from 4:00pm Christmas Eve until 7:00pm Christmas Day each year and the entirety of the Mother’s Day weekend until the commencement of school Monday.

    c)communicate with each parent by telephone or other electronic communication on each of their birthdays and each of the parent’s birthdays, between 5:00pm and 7:00pm

    d)

    (i)2:30pm Good Friday to 2:30 pm Easter Sunday in the year 2014 with the Mother and each alternate year thereafter and in 2015 with the Father and each alternate year thereafter;

    (ii)2:30pm Easter Sunday to 2:30pm Tuesday or 9am if not school holidays, in the year 2014 with the Father and each alternate year thereafter and in the year 2015 with the Mother and each alternate year thereafter;

    e)Live with their parents at such further and other times as may be agreed to between the parties in writing.

11. In the event the children are able to be enrolled at E School, or F School then they attend such school at the Mother’s expense and failing her being able to secure such enrolment for all 3 children within 14 days then they attend such public school as nominated by the Father at the parties’ equally shared expense.

12. Once enrolled the children complete their primary education at that school until there is prior written agreement to change school/s.

13. The children attend G Medical Clinic or such specialist or other health professional as referred by that clinic, save in an emergency and BOTH PARENTS be at liberty to liaise with and obtain information about the children from the clinic and or any specialist or other health professional to which the clinic has referred the child/ren.

14. That each party provide to the other details of any change of address and or phone number and do so within 48 hours of such a change.

1. That in the event that the children suffer any serious injury or if there is a medical emergency in regards to the children whilst in the care of either parent then the parent in whose care the child/ren is/are in shall notify the other as a matter of urgency and they be at liberty to attend the medical institution and liaise with the health or medical staff.

2. That both parties, their servants & or agents be at liberty to attend all school related events, extra-curricular activities, concerts, parent teacher interviews and other like events ordinarily attended by parents AND the parents be at liberty to liaise with the child/ren’s school and receive at their own expense all school reports, school photographs, notices and other like documents relating to the school that are ordinarily provided to parents.

3. That both parents enrol the child/ren at any school or other extra-curricular activity under their birth surname Finch.

4. A copy of these Orders in sealed form be provided:-

   a)         to the children’s school and

   b)to G Medical Clinic or such specialist or other health professional the clinic has referred the children.

5. That the parties continue to utilise a communication book in relation to the welfare of the children.

6. The Mother, by herself, her servants and/or agents be restrained from bringing the children or any of them into contact of any nature whatsoever with Mr I.

7. The appointment of the ICL be discharged.

8. That pursuant to section 65DA(2) and 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 annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

9. Certify for Counsel.

NOTATION:

The Mother has separated from Mr I and she is now living at J Street, Suburb K being her Grandmother’s address, until she obtains her own accommodation.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Curtain & Finch (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 3642 of 2013

Ms Curtain

Applicant

And

Mr Finch

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the first day of a trial concerning parenting orders for three children of the relationship; H who is seven years of age, S who is six and W who is five.  After discussions this morning with the Independent Children’s Lawyer, the parties have reached an agreement and have provided minutes of proposed consent orders to the Court.

2. The key issues for determination in the trial were whether there is an unacceptable risk of sexual abuse for H in the care of her father and whether the mother poses a grave psychological risk to the children’s welfare as a result of her conduct in making numerous allegations of abuse which may be false and resisting the children having a relationship with their father. 

3. The children have lived with the mother each time the parties separated and since final separation in September 2010.  The children were living with the mother and her new partner for almost two years.  However, the Court was informed today that about a week ago, the mother ended that relationship and relocated to Suburb K with the three children.  The mother is now living with her grandmother and the three children until she finds permanent accommodation.

4. Since interim consent orders were made in this Court on 17 February 2014, the children have spent time with their father each alternate week from Friday

   
   

   7.00 pm until Sunday 7.00 pm.  The interim consent orders also provided for the father to spend time with the children for half of all the school holidays.  The time with the father was to take place in the substantial attendance of his partner, his partner’s father or an alternative person known by the children.

1. The parties have reached an agreement with the assistance of the Independent Children’s Lawyer having regard to the significant change in circumstances of the mother’s separation from her partner last week.  The mother and children were previously living in Town L in regional Victoria and there were significant geographical issues in addition to issues about the mother’s partner.  The mother and children are now living in close proximity to the father which improved the prospects of settling disagreements between the parties.  The parties have worked cooperatively with the Independent Children’s Lawyer in reaching an agreement which reflects the change in circumstances.

Procedural History

1. There is a long procedural history and this trial was listed in the Family Court after proceedings had been transferred from the Federal Circuit Court after the mother filed an Initiating Application in the Magistrates Court of Victoria.  Both parties filed Notices of Risk of Abuse. 

2. There is a background of protective involvement with the children by the Department of Human Services. However, there have not been any protection applications or proceedings in the Children’s Court. The information provided by the Department of Human Services under s 69ZW of the Family Law Act 1975 (Cth) recorded that H has been subjected to emotional harm by both parents. This assessment was based on 13 previous reports for the family group regarding themes of neglect, family violence, physical injuries, the mother’s drug use and sexual abuse.

3. The Department of Human Services provided a report to the Court which noted that they have further assessed that substantiated protective concerns are being appropriately responded to by the parents as they have engaged with appropriate support services, and that no further protective concerns appear to be evident.  The Department of Human Services have closed the case.

4. H was also interviewed by police in relation to sexual abuse allegations against her father.  The police investigated these matters and deemed it appropriate to take no further action.  No person has been charged with any criminal offence against H.

5. It is clearly in the best interests of the children that the dispute between the parents be resolved as soon as possible, having regard to the impact which the conflict is having upon them.

The proposed final parenting orders by consent of the parties

1. The report of the Family Consultant is disputed and remains untested.  I have heard submissions from each of the parties in support of the proposed consent minute of orders.

2. On the basis of those submissions and in particular the submissions of the Independent Children’s Lawyer, I am satisfied that it would be in the best interests of the children to make those orders by consent. 

3. Both parties now agree that there is not an unacceptable risk for the children in the care of the other parent.  This is a significant change in each case.  The parties are committed to parenting cooperatively in circumstances where each of them has made concessions but where circumstances have significantly changed.  H has returned to an area where she was attending school and her mother will be making efforts to enrol her in the school where she previously attended, if that is possible.  

4. I have relied upon the objects of the Act under s 60B and the primary and additional considerations outlined under s 60CC(2) and s 60CC(3) of the Act in concluding that the orders are in the best interests of the children.

5. Accordingly, I make the orders in the terms of the minute of consent orders provided to the Court.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered 31 March 2014.

Associate: 

Date:  8 April 2014