Department of Communities and Justice & Hallsbury and Anor (No. 3)

[2020] FamCA 901

FAMILY COURT OF AUSTRALIA

Department of Communities and Justice & Hallsbury and Anor (No. 3) [2020] FamCA 901

File number(s):	CAC 678 of 2016
Judgment of:	GILL J
Date of judgment:	26 October 2020
Catchwords:	FAMILY LAW – orders made by consent – time with children – contact with parties – orders that provide as best as possible for meaningful relationship between the children and parents – where there has been difficulty maintaining care arrangements for the children – context of matter having been reopened – modification to orders sought to clarify school holiday time
Number of paragraphs:	7
Date of hearing:	26 October 2020
Place:	Canberra
Solicitor for the Applicant:	NSW Crown Solicitor’s Office
Solicitor for the First Respondent:	Sam Mason Legal
Solicitor for the Second Respondent:	Elringtons
Solicitor for the Third Respondent:	Dillon-Smith Lawyers
Solicitor for the Fourth Respondent:	No appearance
Solicitor for the Independent Children's Lawyer:	Evans Family Lawyers

ORDERS

CAC 678 of 2016

BETWEEN:

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

AND:

MS HALLSBURY

First Respondent

MR THOMPSETT

Second Respondent

MS KEEN (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	26 OCTOBER 2020

BY CONSENT THE COURT ORDERS:

1.That the Application filed by Mr Thompsett filed 23 April 2020 be withdrawn and dismissed.

PARENTAL RESPONSIBILITY - X

2.That all previous parenting orders for the child X Pemberton (born … 2010) (“X”)be discharged.

3.That sole parental responsibility for X be granted to Ms Hallsbury (“the Paternal Grandmother”).

LIVE WITH / TIME WITH MS KEEN (“THE MOTHER”) - X

4.That X live with the Paternal Grandmother.

5.That X shall communicate with the Mother once per month at times agreed between the Paternal Grandmother and the Mother or failing agreement at 4.30 pm on the 4^th Sunday of each month.

6.The Paternal Grandmother shall ensure that the telephone calls between X and the Mother and Y Thompsett (born … 2013) (“Y”) are conducted in privacy and shall not interfere with the calls.

7.For the purpose of facilitating Order 5, the Mother will telephone the Paternal Grandmother on the number provided by the Paternal Grandmother.

8.The Paternal Grandmother will provide information about X to the Mother, including information about X’s schooling, health and development by sending that information to the provided post office in Order 9.

9.That for the purposes of communication between X, Y, the Mother and the Paternal Grandmother by the sending of items, items sent to the Mother and Y will be sent care of Town A post office or to any such other post office address as advised by the Mother and items sent to the Paternal Grandmother and X will be sent care of Town L post office, or to any such other post office address as advised by the Paternal Grandmother.

10.That within 6 months of the date of these orders the Mother and Paternal Grandmother shall engage in a Family Dispute Resolution Conference (“FDRC”) to discuss X’s time and communication progressing.

X’S TIME WITH MR THOMPSETT

11.That X shall communicate with Mr Thompsett at such times as may be agreed between Mr Thompsett and the Paternal Grandmother.

12.That X shall spend time with Mr Thompsett for no less than 7 days per year, with dates and times to be as agreed between the Paternal Grandmother and Mr Thompsett. IT IS NOTED that Mr Thompsett is prepared to assist with travel to Victoria to collect X and to assist with facilitating X’s time with his brother Y.

PARENTAL RESPONSIBILITY – Y

13.That all previous parenting orders with respect to Y be discharged.

14.That except as otherwise stated the Mother is to have sole parental responsibility for Y.

15.That the Mother in exercise of her parental responsibility shall inform Mr Thompsett as to the school Y shall attend.

Live with /time with Parents

16.That Y shall live with the Mother.

17.That Y shall spend time with Mr Thompsett as agreed between Mr Thompsett and the Mother and if they fail to agree each four weeks on the weekend in the Town C area as follows:

(a)From 9:00 am Saturday 7 November 2020 to 3:00 pm Sunday 8 November 2020;

(b)From after school Friday 4 December 2020 to 3:00 pm Sunday 6 December 2020; and

(c)From 3:00 pm on 29 January 2021 to 3:00 pm 31 January 2021.

18.That thereafter Y shall spend time with Mr Thompsett as agreed between Mr Thompsett and the Mother and if they fail to agree once every 4 weeks from 3:00 pm Friday to 3:00 pm Sunday.

19.That Mr Thompsett shall confirm by way of Talking Parents APP (“the APP”) 7 days prior that he will be attending the next visit with Y.

20.That 7 days prior to his visit with Y proceeding, Mr Thompsett provide to the Mother the address of the accommodation if Mr Thompsett is staying in the Town C/Town M area.

21.That Mr Thompsett shall not travel with Y outside the Town C/Town M or City N area without prior consent in writing between the parties. Consent shall not be unreasonably withheld.

2020 Summer holidays

22.That for the 2020 summer Christmas School holidays, Y spend time with Mr Thompsett from 2 January 2021 to 16 January 2021 with the changeover particulars to be agreed between the parties.

23.That during Y’s time with Mr Thompsett for the period 2 January 2021 to 16 January 2021, Y communicate with his Mother on Mondays and Thursdays at 5:00 pm with Mr Thompsett to initiate the call on a number provided by the Mother.

Holidays

24.That with respect to school term holidays, Y spend time with Mr Thompsett in the first week of all gazette NSW term school holidays, commencing at 9:00 am on the first Saturday after the last day of school and ending at 12 pm on the middle Saturday of the school holiday period.

25.That with respect to summer holidays, Y spend time with Mr Thompsett for a two-week block during the gazette NSW summer school holidays, with such dates and times agreed between the parties but failing agreement for the third and fourth week of the holidays being taken to commence at 9 am on the third Saturday of the school holiday period and end at 12 pm on the fifth Saturday of the school holiday period NOTING that such timing would enable Y to return into his Mother’s care and acclimatise prior to commencing his new school year. 

Changeovers

26.That where changeovers do not take place at Y’s school, the changeovers for all of Y's time with Mr Thompsett shall be at Town M McDonalds.

Special days

27.That Mr Thompsett shall be at liberty to travel to see Y and spend up to four (4) hours with Y in the Town C area on or around the following special days, so long as Mr Thompsett has notified the Mother no less than 14 days prior and that the Mother is not to unreasonably withhold consent:

(a)Christmas Day;

(b)Easter Sunday;

(c)Father’s Day;

(d)Y’s Birthday;

(e)Mr Thompsett’s Birthday.

28.That Mr Thompsett be at liberty to speak with Y by phone on each of the above special days and that the Mother will make reasonable efforts to accommodate this phone call.

Communication

29.That Mr Thompsett shall communicate with Y on one occasion each week with Mr Thompsett to make the call at 5:00 pm on Sunday.

30.That Mr Thompsett shall facilitate a call for Y to speak the Mother at least twice per week whilst Y is with Mr Thompsett at a time agreed to by the parents on the APP.

31.That during the time Y is with the other parent that parent shall:

(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

(b)Speak of the other parent respectfully; and

(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

32.That the parents shall communicate with each other about Y by way of the APP.

Other

33.That neither parent shall expose Y to loud adult arguing or family violence of any kind.

Drug Issues

34.That neither parent will consume alcohol to excess or use illicit substances for at least 48 hours prior to spending time with the child and whilst the child is in that parent's care.

Exchange of Information

35.That the Mother and Mr Thompsett shall:

(a)Keep the other parent informed of the names and addresses of any treating medical or health practitioners who treat the child and authorise those practitioners to provide the other parent with information they are lawfully able to provide about the child;

(b)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This order authorises any treating medical practitioner to release the child's medical information to the other parent.

36.That both parents authorise by this Order, the schools or day-care centres attended by the child to give each parent information about the child's educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parents cost).

Review

37.That the parties shall take part in an FDRC within 12 months to come to an agreement on how Y's time with Mr Thompsett shall progress.

NOTATIONS

A.That the Secretary, Department of Communities and Justice (“the Secretary”), shall provide such financial assistance to the Paternal Grandmother as he, in his absolute discretion may determine.

B.Mr Thompsett will make best efforts to facilitate Y’s time with X and the Paternal Grandmother will make best efforts to enable this time to occur.

C.That for the purposes of future litigation as between the parties and X and Y, the parties agree that the Secretary would not be a party to those proceedings unless in respect to an application regarding the breakdown of X’s current placement with the Paternal Grandmother, where the Secretary would consider joining as a party in future proceedings.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities and Justice & Hallsbury has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

GILL J

1. The history of this matter is a difficult history.  The matter has previously been resolved but, for reasons which become apparent on a reading of the previous judgments given in this matter, has been required to be reopened.  Much of those matters concerned the arrangements that would be in place for X.

2. The parties, or those parties who are participating in the proceedings, have now come to a common agreement as to the appropriate orders to be made both in respect of X and Y. 

3. The orders proposed by the parties provide for each of the two boys to be cared for by the person best in a position to care for each of them and most able to provide a stable environment for each of them.  The orders also provide, as best as they can, for meaningful relationship between each of the boys and the parents in so far as they are involved in the proceedings to the extent that such meaningful relationship may be available.  In a context of there being limited capacity to care for the children and gross difficulties in maintaining care arrangements for the children, the orders proposed by the parties reflect orders that would provide for the best interests of each of the two boys. 

4. Accordingly, I propose to make orders in the terms of Exhibit C1, as agreed by the parties. 

5. However, a matter arises as to some uncertainty in the operation of the school holiday orders, in that the school holiday orders at Orders 24 and 25 do not set out in specific terms when the default provisions would fall, at least not with sufficient clarity.  In the interests, and without opposition but without the consent, of the parties it seems appropriate to make orders that minimise conflict between the parties, confusion between the parties and the prospects of further litigation. 

6. Accordingly, I propose to amend the terms at Orders 24 and 25 to be as following:

7. On Order 24 to add the phrase “and ending at 12 pm on the middle Saturday of the school holiday period” and in relation to Order 25 amend Order 25 such that before the word “noting” the following phrase “being taken to commence at 9 am on the third Saturday of the school holiday period and end at 12 pm on the fifth Saturday of the school holiday period”.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       26 October 2020

SCHEDULE OF PARTIES

CAC 678 of 2016
Respondents
Fourth Respondent:	MR PEMBERTON