Daniels and Burton

[2009] FamCA 865

FAMILY COURT OF AUSTRALIA

DANIELS & BURTON [2009] FamCA 865

FAMILY LAW – CHILDREN – Consent orders

APPLICANT: Ms Daniels

RESPONDENT: Mr Burton

INDEPENDENT CHILDREN’S LAWYER: Mary Lonergan

FILE NUMBER: DGF 208 of 2004

DATE DELIVERED: 12 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 12 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McCreadie

SOLICITOR FOR THE APPLICANT: Duffy & Simon

FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT LAWYER: Mr Hoult

SOLICITOR FOR THE INDEPENDENT LAWYER: Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED:

1. All previous orders be dismissed.

1. The Mother have sole parental responsibility for the children J born … April 2000 and C born … April 2000 (“the Children”).

2. The Children live with the Mother.

3. The Children not spend any time with the Father.

4. That the order for the appointment of the Independent Children’s Lawyer be discharged.

5. That a transcript of the Independent Children’s Lawyer’s closing submissions and Her Honour Justice Dessau’s brief observations after pronouncing the consent orders be retained on the court file.

6. That 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.

AND IT IS NOTED

A.That members of the children’s paternal family be entitled to forward cards, letters and gifts to the children.

B.That should the children express a wish to have contact with members of their paternal family the Mother will facilitate same.

IT IS NOTED that publication of this judgment under the pseudonym Daniels & Burton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 208 of 2004

MS DANIELS

Applicant

And

MR BURTON

Respondent

REASONS FOR JUDGMENT

1. I will make orders in accordance with the consent Minutes dated today’s date.  I will direct they remain on the court file, and the solicitor for the mother will prepare the orders within seven days. 

2. Both parties must understand that there is an attachment that says you both must comply with court orders.  Otherwise there are potential punishments, that can even include imprisonment.  I am obliged to tell you both that.

3. I am conscious this is a very difficult decision for the father.  But I think it is a realistic decision, and I think that it is one taken in the light of the evidence. 

4. Given that my task is to decide a case in the children’s best interests, the evidence was overwhelming that these children’s best interests currently dictate that this is the outcome.  I was particularly impressed with, and guided by the expert evidence in that respect, and left with the impression that there was no realistic alternative to these orders.

5. I can add to those very brief comments by saying that the ICL’s submission fully encapsulated my thinking based on the evidence.

COSTS

1. The mother seeks costs.

2. I think it is easy for one side to say that the result was always clear, but I have sat here listening to all of the evidence, agonising over all of the evidence, and evaluating all of the evidence.  It is not a situation where I can say it was such a foregone conclusion that the case should not have proceeded.

3. I am sympathetic to the fact that the mother is paying her own costs.  I am not overlooking that.  But the Family Law Act provides that each party will pay their own costs unless I exercise my discretion to the contrary.  I am not prepared to do so in this case for the reasons I have given.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  12 August 2009