Donney & Howard
[2022] FedCFamC1F 79
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Donney & Howard [2022] FedCFamC1F 79
File number(s): MLC 2890 of 2021 Judgment of: BENNETT J Date of judgment: 21 February 2022 Catchwords: FAMILY LAW – PARENTING – need to accord the child respect in parenting proceedings.
FAMILY LAW – PARENTING – where there are complex parenting proceedings about a child (11 years old) – where this is the third major parenting proceedings concerning the child since child was 1 year old – where parents agree on an outcome.
FAMILY LAW – PARENTING – where independent children’s lawyer required to inform child of orders which parents propose be made – where child’s view of resolution was taken into account as an additional consideration.
FAMILY LAW – PARENTING –when seeking final parenting orders be made by consent, independent children’s lawyer should give prior consideration to whether it is appropriate or desirable for the child to be informed of the proposed resolution, which has been finally agreed between the parties, before orders are sought to be made by consent. Whether the judge can be informed of the child’s view of the proposed resolution. How a child affected by an order is to be informed of the order having been made and how the order will operate.
Cases cited: Bryce & Bryce [2020] FamCA 653 Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 12 January 2022 Place: Melbourne (via Ms Teams) Counsel for the Applicant: Ms Bowen Solicitor for the Applicant: Clancy and Triado Counsel for the Respondent: Mr Heggie Solicitor for the Respondent: Sage Family Lawyers Counsel for the independent children’s lawyer: Dr Alexander Solicitor for the independent children’s lawyer: Creative Family Law Solutions ORDERS
MLC 2890 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DONNEY
Applicant
AND: MS HOWARD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
12 JANUARY 2022
BY CONSENT THE COURT ORDERS THAT:
Procedural
1.All previous parenting orders, including the final parenting orders dated 5 September 2012 and 4 February 2015, be and are hereby discharged.
2.The independent children’s lawyer (“ICL”) be discharged within 28 days of the date of this Order.
Decision making
3.The parties have equal shared parental responsibility in relation to the child X born in 2010.
Living arrangements and communication
4.X live with the Mother and the Father respectively, on an equal shared care basis as follows:
(a)With the Mother for the remainder of the 2021/2022 long summer holidays until 8.30am Monday 31 January 2022;
(b)During school terms:
(i)Each week from the conclusion of school on Monday (or 8.30am if a non-school day) until the commencement of school on Wednesday (or 8.30am if a non-school day) with the Mother;
(ii)Each week from the conclusion of school on Wednesday (or 8.30am if a non-school day) until the commencement of school on Friday (or 8.30am if a non-school day) with the Father;
(iii)Commencing on Friday 04 February 2022, each alternate weekend from the conclusion of school on Friday (or 8.30am if a non-school day) until the commencement of school on Monday (or 8.30am if a non-school day) with the Father; and
(iv)Commencing on Friday 11 February 2022, each alternate weekend from the conclusion of school on Friday (or 8.30am if a non-school day) until the commencement of school on Monday (or 8.30am if a non-school day) with the Mother.
(c)During school holidays:
(i)The child spend school holidays term holidays with the parents as agreed via email or SMS text and failing agreement:
A.In 2022 and all even years thereafter, the first half with the Mother and the second half with the Father; and
B.In 2023 and all odd years thereafter, the first half with the Father and the second half with the Mother.
(ii)For half of the long summer holidays, as agreed, and failing agreement:
A.In odd years, with the Father, from 3.30pm or the conclusion of school on the last day of Term 4, to 12noon on the day being the midway point of the long summer holidays, and each alternate year thereafter;
B.In odd years, with the Mother, from 12noon on the day being the midway point of the long summer holidays to 9.00am or the commencement of school on the first day of Term 1;
C.In even years, with the Mother, from 3.30pm or the conclusion of school on the last day of Term 4, to 12noon on the day being the midway point of the long summer holidays, and each alternate year thereafter; and
D.In even years, with the Father, from 12noon on the day being the midway point of the long summer holidays to 9.00am or the commencement of school on the first day of Term 1.
(d)With the Father from 10am to 5pm on Father’s Day if it falls on a day when X is not otherwise living with the Father.
(e)With the Mother from 10am to 5pm on Mother’s Day if it falls on a day when X is not otherwise living with the Mother.
(f)For Christmas:
(i)In odd years:
A.With the Father from 2pm, 24 December (Christmas Eve) to 2pm, 25 December (Christmas Day), and each alternate year thereafter;
B.With the Mother, from 2pm, 25 December (Christmas Day) to 2pm, 26 December (Boxing Day), and each alternate year thereafter;
(ii)In even years:
A.With the Mother, from 2pm, 24 December (Christmas Eve) to 2pm, 25 December (Christmas Day);
B.With the Father, from 2pm, 25 December (Christmas Day) to 2pm, 26 December (Boxing Day) and each alternate year thereafter;
(g)In the event that there is a long weekend (i.e. a public holiday on a Friday or Monday, or the Melbourne Cup four day break) that does not fall during the school holidays, then X shall be in the care of the party she would otherwise spend the weekend with pursuant to these orders. In the event that the public holiday is the Friday she shall come into the care of the party with whom she is to spend the weekend with at 8.30am on the Friday morning or in the event that the public holiday is the Monday or Tuesday she shall remain in the care of the parent she has spent the weekend with until 6pm on the last day of the long weekend.
(h)All other times as agreed between the parties in writing via email or SMS text.
5.The routine referred to order 4(b) is reset at the commencement of each student school year with the Father to have the first weekend of each student school year.
6.The parent with whom X lives with shall facilitate and ensure that she attends the following extra-curricular activities whilst in their care up until the conclusion of school year 2023:
(a)Dance classes (or such other available dance/theatre class) on Tuesdays at L Arts Centre;
(b)Musical theatre (or such other available dance/theatre class) on Thursdays at L Arts Centre; and
(c)Swimming on Wednesdays at B Sports Centre.
7.The parties shall permit X to email or telephone the other parent at such times as she shall reasonably request.
8.Where changeover does not occur at school, the Mother will deliver X to the Father’s residence for the commencement of his time, and at the conclusion of his time, the Father will return X to the Mother’s residence for the commencement of her time.
9.In the event X is invited to a party or other special occasion during the time the child is in the other parent’s care, the parent who has received the invitation forthwith provide it to the other parent, to enable the parent with whom the child is living with at the time of the party or other special occasion, to respond to the invitation as they may choose.
10.The parties shall communicate via SMS in relation to all matters concerning X save for in the event of an emergency.
11.The parties shall immediately inform the other of any serious illness or injury sustained by X whilst in their care and further provide any particulars of any treatment received by the child together with the name and address of the treatment provider and or location at which the child is a patient.
12.Each party shall notify the other with no less than 7 days prior written notice and particulars of any change of residential address, telephone number and email address.
13.Each party be and is hereby restrained from:
(a)Discussing with X or any other person in the child’s presence or hearing, any material filed or any other details of these proceedings; and
(b)Abusing, belittling and/or denigrating the other party (or the family of the other party) in the presence or hearing of the child, or allowing the child to remain in the presence or hearing of anyone abusing, belittling and/or denigrating the other party or the family of the other party.
Education and extra-curricular activities
14.X attend and complete her secondary education at C School, with parties to forthwith do all such things and sign all documents to enrol the child at C School.
15.While X is attending C School (anticipated to be 2023 to 2028) the Mother be restrained by injunction from:
(a)Teaching at C School in X’s first year at C School in 2023 (NOTING THAT the Mother has indicated that she will take long service leave during the 2023 academic year); and
(b)Teaching at C School from the year 2026 onwards or until X ceases her education at C School.
16.The Mother may exercise the option to teach C School in 2024 and 2025 on the basis that:
(a)The Mother has used her best endeavours to secure suitable alternative employment and has been unsuccessful in relation to same;
(b)The Mother does not teach X’s year level;
(c)The Mother does not have any professional involvement in extra-curricular activities offered by C School that X is involved in including but not limited to any school productions or coaching or classes or leadership position in relation to same; and
(d)The Mother is employed at no more than .6 FTE.
17.When the Mother is not teaching at C School (including in 2023 when she may take long service leave) then the parties shall each be responsible for one half of X’s school fees in that year (including uniforms, all items specified on the annual book list, compulsory fees and levies, and agreed optional programs and trips).
18.If the Mother is teaching at C School in 2024 or 2025, then she shall be solely responsible for X’s school fees (including uniforms, all items specified on the annual book list, compulsory fees and levies, and agreed optional programs and trips) in that year.
19.Once X commences at C School in 2023:
(a)The parties do all acts and things to provide a copy of the Family Report of Ms D dated 20 December 2021 to the school counsellor;
(b)The parents be and are hereby restrained from initiating contact with the school counsellor;
(c)If either parent is contacted by the school counsellor then they shall do all acts and things to ensure the other parent is forthwith provided with details of that communication;
(d)The parents shall authorise the school counsellor to communicate with X’s treating psychologist;
(e)The parents be and are hereby restrained from volunteering at C School unless agreed between them in writing; and
(f)Provide a copy of these Orders to C School.
20.In the event one party fails or refuses to sign the requisite documents to effect X’s enrolment at C School as referred to in order 14 herein, within seven (7) days of a written request to do so, the other party may sign on behalf of that party.
21.The parties do all such things and sign all such documents to request and authorise any school that X may attend from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent teacher interview and other information relating to the child’s education to both parents.
22.The parties both be permitted to attend all school activities, including school concerts, school plays, excursions, parent teacher interviews and the like, normally attended by parents.
23.Each party be at liberty to attend all sporting and extra-curricular activities which the child may participate in normally attended by parents.
24.Save and except for swimming lessons, musical theatre, dance classes that X is currently enrolled and attends, or such extra-curricular activity/ies the child is required to attend as part of her mandatory school curriculum, each party be restrained from enrolling X into any further activities during the other party’s time, unless otherwise agreed in writing via email or SMS text.
25.The Father be solely responsible for all costs associated with X attending swimming, and the Mother, for all costs associated with the child attending musical theatre, dance classes, with such extra-curricular activity/ies the child is required to attend as part her mandatory school curriculum, to be borne equally between the parties. The cost of any further activities that may be agreed in writing, are to be borne by the party proposing the activity in the first instance.
Medical and allied health
26.The parties be restrained by injunction from having any medical or other like professional attend upon X save for in the case of an emergency and the following practitioners:
(a)General Practitioner: either E Medical Centre (or nominee) or K Medical Centre (or nominee), including specialists referred by the General Practitioner;
(b)Dentist: F Dentistry (or nominee); and
(c)Psychologist: Ms G (or other recommended by her and/or nominated by the independent children’s lawyer pursuant to these Orders); and
(d)Such other professionals agreed in writing by the parties.
27.The parties do all acts and things to inform both E Medical Centre (or nominee) and K Medical Centre (or nominee) that X attends upon both clinics and do all acts and things to authorise those clinics to communicate with one another and both parties regarding X including but not limited to using My Health Record.
28.X continue to attend upon either psychologist, Ms G ,or such other psychologist as recommended by Ms G, or such other psychologist recommended by the ICL prior to her discharge for non-reportable therapeutic counselling (“X’s psychologist”).
29.The parents attend non-reportable family therapy with either Ms G (if agreed by her), or otherwise with a family therapist agreed in writing between the parties, or nominated by Ms G or such other family therapist recommended by the ICL (“the family therapist”) or such with X for the purpose of family counselling and both parents shall follow all reasonable recommendations of the family therapist in regards to the conduct, configuration and duration of the counselling.
30.The cost of X’s psychologist and the family therapy is to be borne by the parents in equal shares for sessions with X alone, and if either parent attends to participate in an appointment then that parent shall pay for that appointment.
31.The parents shall provide a copy of these orders and the Family Report of Ms D dated 20 December 2021 and these Orders to X’s psychologist and the family therapist and the General Practitioners X attends pursuant to these orders.
Travel
32.Within 120 days of the date of these Orders, the parties do all acts and things to apply for an Australian passport for X at their equal shared expense.
33.In the event either party intends to travel with X outside the Commonwealth of Australia, they shall not less than 45 days (or such other period as the parties agree), notify the other in writing as to:
(a)The country/ries to which the child will travel and with whom the child will travel;
(b)The airline upon which the child will travel;
(c)The date upon which the child will depart and return to the Commonwealth of Australia;
(d)The proposed travel occurs during X’s time with that parent unless otherwise agreed in writing;
(e)The address at which the child will reside and a telephone number on which the other party can communicate with the child; and
not less than seven (7) days prior to the departure provide a final itinerary for the child.
34.If either party has complied with the notice provisions in order 33 then:
(a)They shall be permitted to remove X from the Commonwealth of Australia to enable such travel;
(b)The non-travelling parent shall provide them with X’s passport no less than 14 days following provision of the notice; and
(c)The travelling parent shall retain X’s passport until a further request is received pursuant to these Orders.
35.For the purpose of the father and his partner Ms H’s wedding, in the year 2024, the Father be at liberty to holiday with X for up to 3 weeks during school term (provided that the school gives permission in relation to same and that the father ensure that X keeps up with the curriculum during the period of absence), with such time to be annexed to his existing school holiday time (with the total travel time to be for a period of up to 4 weeks) provided for in these Orders and the father shall;
(a)Notify the Mother in writing no less than 3 months prior to the intended departure date;
(b)Notify the Mother in writing of the details of the trip including the proposed itinerary; and
(c)Provide X with a mobile phone to ensure that she is able to contact the Mother at all reasonable times.
36.In the event the holiday referred to in Order 35 herein is unable to be facilitated due to unforeseen circumstances, the Father be at liberty to reschedule the holiday on the same conditions as referred to in Order 35 herein.
37.The mother be at liberty on one occasion to be nominated by her to holiday with X for up to 3 weeks during school term (provided that the school gives permission in relation to same and that the mother ensure that X keeps up with the curriculum during the period of absence), with such time to be annexed to her existing school holiday time (with the total travel time to be for a period of up to 4 weeks) provided for in these Orders and the mother shall;
(a)Notify the Father in writing no less than 3 months prior to the intended departure date;
(b)Notify the Father in writing of the details of the trip including the proposed itinerary; and
(c)Provide X with a mobile phone to ensure that she is able to contact the Father at all reasonable times.
38.In the event the holiday referred to in Order 37 herein is unable to be facilitated due to unforeseen circumstances, the Mother be at liberty to reschedule the holiday on the same conditions as referred to in Order 37 herein.
Ancillary
39.Within 14 days of the date of these Orders the ICL do all acts and things to explain the effect of these Orders to X via Zoom or similar electronic communication insofar as they relate to her living arrangements and the school she is to attend.
40.In the event the Mother or the Father refuse or neglect to sign any such document/form to give effect to any orders herein after 7 days of being requested to do so, the other party may apply to the Registrar of the Federal Circuit and Family Court of Australia, pursuant to Section 106A of the Family Law Act 1975, to execute such document/form on behalf of either party and do all acts necessary to give validity and operation to the said document/form.
IT IS FURTHER ORDERED THAT:
41.All extant applications be and are hereby dismissed and this matter be removed from the docket of the Honourable Justice Bennett.
42.Pursuant to Sections 65DA and 62B of the Family Law Act 1975, the particulars of the obligations pursuant to these Orders create and the particulars of the consequences that may follow, a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
IT IS DIRECTED:
43.That the minute of consent orders be marked Exhibit “A” and remain on the Court file.
44.My reasons be transcribed and, when settled, be placed on the Court file and a copy be sent to each party.
AND THE COURT NOTES THAT:
A.The Father has commenced family law proceedings on three occasions since 2010 to the current date. Those proceedings have caused the parties considerable financial strain.
B.The parties intend that these Orders will remain in place until X reaches 18 years of age and to engage in either family therapy or mediation in the event that any dispute arises between them as to the implementation of these Orders.
C.While neither party intends to seek to vary these Orders, in the event of either party filing an application then the parties agree to seek that the matter be listed before Her Honour Justice Bennett if it can be accommodated.
D.The child is currently enrolled in and attends swimming lessons on Wednesday afternoons and musical theatre, dance classes on Tuesday and Thursday afternoons. The days these activities are conducted may change from time to time.
E.The ICL has explained the operation of this Order to the child and the fact that it represents a resolution reached between the parents, and to which each parent agreed, rather than a determination of the Court imposed on the parents and the child.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Donney & Howard is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
This complex parenting matter concerning X (aged 11 years) resolved after the parties attended a court funded mediation within the DRC-P program with Judicial Registrar Jill Raby. Whilst this particular proceeding was not long running it is the third parenting proceeding about X since the parents separated in 2011, when X was 1 year old. The father initiated proceedings in 2011, 2014[1] and 2021. A final parenting Order was made, by consent, on 5 September 2012 when X was two years old. A further final parenting Order was made, by consent, on 4 February 2015. The Order made by Judge Hartnett (as she then was) on 4 February 2015 includes the following notation:
[1] The 2012 and 2015 orders were made in proceedings MLC 10897 of 2011.
That the costs of this and the previous proceedings has been debilitating to the father (as the Applicant) and the mother (as Respondent) and the parties agree that in the event either party seeks a variation to this, or the Orders dated 2 August 2012, the parties will attend mediation and make a genuine effort to resolve any dispute which may arise.
The Order which the parties and practitioners have negotiated for most of today is the third detailed parenting order about X and, like the Order made in 2015, it deals in minute detail with arrangements for X’s education. Both parents are teachers.
The fact that all final orders have been sought by consent belies the high degree of parental conflict and the personal energy and high financial cost expended in proceedings before the family courts.
I hold to the view, expressed recently in Bryce & Bryce [2020] FamCA 653[2], that children must be accorded respect in proceedings. Depending on the age of the child(ren), that may involve informing the child of the basis upon which the parents agree to resolve the proceedings before the parties or their practitioners seek that orders be made in those terms. That is what occurred in this case.
[2] See paragraphs [30] to [41].
I directed that the Independent Children’s Lawyer inform X of the proposed resolution of the proceedings before either of her parents had an opportunity to do so and to report back to the court on the child’s response prior to me deciding whether I would make the order sought. The matter was stood down so that a discussion could be accommodated between Ms J and the child. I note that Ms J is overseas but made herself available to speak with X when it was 1:45 a.m. in Ms J’s location. The outcome of that discussion as well as a discussion with the Court Child Expert, Ms D, was relayed to the court through counsel for the Independent Children’s Lawyer, Dr Alexander. These reasons were delivered subsequently because I wanted to listen again to the audio recording of Dr Alexander’s comments.
The view of the Court Child Expert was that the proposed final orders were “a really good, great solution for X it will relieve a lot of the pressure on her.” The Court Child Expert had described X as heavily burdened by the ongoing conflict between her parents and continual court proceedings.
Dr Alexander also had a discussion with Ms J, Independent Children’s Lawyer, by whom she was briefed. Dr Alexander recorded that Ms J referred specifically to “the look on X’s face”. Ms J said X seemed very relieved and appeared happy but “hardly able to believe” that her parents had “actually come to an agreement, with the help of lawyers and mediators and that the judge didn’t have to make a decision.” Dr Alexander recorded that Ms J said that X “was very relieved. She in fact said it would take her sometime to process that fact.”
Ms J explained that it would be the same arrangement in terms of equal time for holidays and that Monday and Tuesday would be with the mother and those activities- Wednesday and Thursday with the father and those activities and weekends shared. She explained to X, who in Ms J’s estimation is “obviously an intelligent articulate child”, the arrangements for X to go to C School. X was described as “expressing relief. She understood that her mother wouldn’t be teaching there for the first year at least. And certainly not after 2026, when X will be in Year 10.”
Ms J talked to X about counselling. X was happy to keep engaging with the current counsellor but also to try another counsellor who would also involve her parents in some of the counselling sessions. X wanted, in her words, “more strategies for dealing with mum and dad” and thinks that another counsellor may help her develop those strategies.
Ms J assured X that she could contact her. The Independent Children’s Lawyer is not discharged for another 28 days and Ms J’s contact details; telephone and email details will be provided to the mother to be passed on to X.
As I observed in Bryce & Bryce, much is made of children’s views as support for an outcome which is sought (or opposed) by a parent in proceedings. However, almost invariably my experience is that parents, those who represent parents and even the Independent Children’s Lawyer is not apprised of the child’s view of a proposed settlement because the child has not been consulted. This is notwithstanding that the outcome may be contrary to the view of the child expressed to an assessor such as a Court Child Expert or family report writer. It is also regardless of the additional consideration in s.60CC(3)(a) being cast widely and that the Act recognizes, in s.60CD, that there are a number of ways in which the court may be informed of a child’s view.
In this process, the child did not have a right of veto. X was not asked whether she agreed or did not agree with the settlement between her parents. As the judge, I wanted to know X’s reaction to the proposed resolution, that is, her “views”. It was important for X to be told unambiguously that the resolution was agreed to, endorsed and sought by both parents rather than being a decision imposed upon them and with which he/she may not agree. It was a nuanced process and one in which, in future cases, it would be desirable and sensible for practitioners to ask for assistance from the Child Court Expert or family report writer.
I make these comments in the expectation that, when seeking orders by consent in children’s matters, the practitioners, and particularly Independent Children’s Lawyers, will have given prior consideration to:
·Whether it is appropriate or desirable for the child to be informed of the proposed resolution, which has been finally agreed between the parties, before orders are sought to be made by consent.
·Whether the judge can be informed of the child’s view of the proposed resolution.
·How a child affected by an order is to be informed of the order having been made and how the order will operate.
The age and degree of maturity of the child will be a significant factor in the above considerations. I am not suggesting continual consultation with a child throughout negotiations or anything else which would burden the child with a sense of responsibility about the outcome. It is obviously predicated on the Independent Children’s Lawyer having met the child during the proceedings. It is all a matter of according the child respect.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 21 February 2022
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