DAAI & JOENG

[2013] FamCA 581

FAMILY COURT OF AUSTRALIA

DAAI & JOENG [2013] FamCA 581

FAMILY LAW – CHILDREN – Final orders by consent

Family Law Act 1975 (Cth)

APPLICANT: Mr Daai

RESPONDENT: Ms Joeng

INDEPENDENT CHILDREN’S LAWYER: Cathleen Corridon & Associates

FILE NUMBER: MLC 4177 of 2010

DATE DELIVERED: 29 April 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 29 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Morgan

SOLICITOR FOR THE APPLICANT: Clarke & Barwood Lawyers

COUNSEL FOR THE RESPONDENT: Ms Gorman

SOLICITOR FOR THE RESPONDENT: Jeanne Gorman

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Clark

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Cathleen Corridon & Associates

IT IS ORDERED BY CONSENT

1. That the parents have equal shared parental responsibility for the children of the marriage C born … 1997 (“C”), D born … 1999 (“D”), E born … 2003 (“E”), F born … 2003 (“F”), G born … 2006 (“G”), H (“H”) born … 2006 and J born … 2009 (“J”) (collectively referred to as “the children”).

2. That the children live with the Wife.

3. That the Husband spend time with the children save for C as follows:

   (a)  Each alternate weekend from 10.00 am until 5.00 pm on Saturday commencing 4 May 2013;

   (b)  On Father’s Day from 10.00 am until 5.00 pm;

   (c)  On Boxing Day from 10.00 am until 5.00 pm;

   (d)  On 3 August 2013 from 10.00 am until 5.00 pm;

   (e)  On 17 August 2013 from 10.00 am until 5.00 pm; 

   (f)   Such further and other times as agreed between the parties;

4. The children shall have telephone contact with the Husband as follows:

   (a)  Each Monday and Thursday and on the Husband and children’s birthdays between 5.30 pm and 6.30 pm and the Wife shall ensure that the telephone supplied by the Husband is charged and available to receive calls and do all things to facilitate private telephone communications between the children and the Husband;

   (b)  The Husband shall supply to the children a charged mobile phone to facilitate paragraph 4(a);

   (c)  That the parents shall facilitate the children’s reasonable requests to telephone the other party and shall ensure the conversations between the children and the respective parents are conducted in private.

5. C shall spend time with the Husband according to C’s wishes.

6. The Husband’s contact time with the children shall be suspended from 29 June 2013 until 22 July 2013.

1. That unless otherwise agreed all changeover is to occur at the K Playcentre, Suburb L.

2. That each parent notify the other of any health problems or illnesses affecting the children or any of them as soon as reasonably practicable and shall advise the other forthwith of any medical emergency concerning the children or any of them whilst the children are in their respective care and shall provide the other with details of any health care professionals that may be caring for the children or any of them and further each party shall within 7 days of the date of these Orders deliver written consent to such health care professionals to release any details of any medical treatments/conditions concerning the children or any of them upon the other parent’s request.

1. That each parent be entitled to obtain copies of all pre-school/school photographs, pre-school/school reports, newsletters, notices, information pertaining to the children’s education, progress, pre-school/school activities, parent-teacher interviews, extra-curricular events and any other circulars as may be available from the pre-school/school and that each parent be entitled to attend any pre-school/school activities, pre-school/school concerts, sporting events, parent-teacher interviews or other functions ordinarily attended by parents and that each parent further authorises any pre-school/school that the children attend or shall attend in the future to discuss the welfare and education of the children with the other parent and each party be at liberty to provide a copy of these Orders to any pre-school/school that the children attend or shall attend in the future and each party bear the costs of same.

10. The Husband and the Wife, their servants and/or agents shall be and are hereby restrained by injunction from abusing, insulting belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the children and from permitting any other person to do so.

11. That both the Husband and the Wife be restrained from consuming alcohol in excess whilst having the care of the children.

12. That each parent shall keep the other informed of their mobile telephone number and email address (if any) and inform the other of any change thereof within 24 hours.

13. The Husband and the Wife shall not travel interstate with the children or any of them for the purposes of a holiday without first providing the other party with not less than 21 days notice in writing of such intention and advising particulars of any travel proposed to be undertaken including contact telephone numbers of where the children can be reached and offering the other party reasonable make up time with the children upon their return from the holidays.

14. That the Wife be restrained from changing the children’s place of residence to a place more than 50km from Melbourne without the Husband’s prior written consent or Court Order and the Wife shall provide the Husband with no less than 3 months notice of intention to relocate.

15. That both parents are restrained from changing the children’s names either formally or by usage.

16. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth) as amended, 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 parents 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

A.    The parties intend to review the arrangements regarding the care, welfare and development of the children and the time the Husband spends with them when the Husband obtains suitable accommodation and shall work towards the children spending more time and overnight time with the Husband when he obtains suitable accommodation. 

B.     That the Husband and the Wife assert that the injunctions contained in paragraphs 10 and 11 hereof are unnecessary in so far as they refer to them.

C.     That the Husband undertakes to provide lunch for the children whilst they are in his care.

IT ORDERED BY THE COURT THAT

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

IT IS DIRECTED THAT

18. All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daai & Joeng 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 4177 of 2010

Mr Daai

Applicant

And

Ms Joeng

Respondent

REASONS FOR JUDGMENT

1. The matter was listed before me today for final hearing.  A family report was prepared by Ms M, which was dated 24 January 2012, and when the matter was set down for final hearing before me an order was made for an updated family report. The mother did not attend with the children for the purpose of the preparation of that report and therefore an updated family report could not be prepared. However, the parties have now reached an agreement in relation to the arrangements for the seven children of their relationship and ask me to now make final orders by consent.

2. The matter has a lengthy history.  There are allegations of family violence and the children being exposed to that family violence.  There are periods of time when the father has spent little or no time with the children and there were, according to the report prepared by Ms M in January 2012, issues with respect to the children’s relationship with the father and their connection to the father.

3. In the period of time in which I have been involved in the matter it has been listed before me on a number of occasions and there have been some difficulties with the father spending time with the children. However, it is a credit to both the parties and to their legal practitioners that there has been a clear commitment to making that time happen and to giving the father an opportunity to develop his relationship with the children. That relationship has been complicated by the fact that the father has been living in N Town and does not have a motor vehicle, and it is further complicated by the fact that he does not at this stage have accommodation suitable for accommodating the children on an overnight basis.

4. Certainly, from my perspective and my history of involvement in the matter, it would appear that the parties are moving the matter forward and have reached a resolution of the matter which will ensure that the children, albeit not the eldest child whose relationship with the father is more tenuous, will be able to develop and continue to have an ongoing relationship with the father. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 29 April 2013.

Associate:

Date:  9 August 2013