Drew and Lowe (No 2)

[2010] FamCA 673

FAMILY COURT OF AUSTRALIA

DREW & LOWE (NO. 2) [2010] FamCA 673

FAMILY LAW – CHILDREN – Final Orders made following a Notice of Discontinuance being filed

Family Law Act 1975 (Cth)

APPLICANT: Mr Drew

RESPONDENT: Ms Lowe

INDEPENDENT CHILDREN’S LAWYER: Ms Lilley

FILE NUMBER: BRC 402 of 2009

DATE DELIVERED: 28 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 28 July 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Madsen

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Lilley, of Legal Aid Queensland

Orders

AS AND BY WAY OF CONSENT AS BETWEEN THE FATHER AND THE INDEPENDENT CHILDREN'S LAWYER AND IN DEFAULT OF ANY APPEARANCE BY THE MOTHER, IT IS ORDERED

1. That except as otherwise stated, the Father is to have sole parental responsibility for the major long term issues of the child B born … August 2007 (“the child”).

2. That notwithstanding the provision of Order 1:

   (a)The Mother shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with her.

   (b)The Father shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with him.

Exchange of Information

1. That the Mother and Father shall:

   (a)Keep the other parent informed at all times of their residential address and landline and/or mobile contact telephone number and notify each other within 48 hours of any change;

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

   (c)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.

2. That the parents authorise, by this Order, the school or day care centre 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 newsletters, and awards obtained by the child (at that parent’s cost).

3. That during the time the child is with either 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 and their partners respectfully;

   (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.

Time with the parents

1. That the child is to live with the Father.

2. That in the event the mother seeks to commence spending time with the child, the mother shall contact the M Community Legal Service and do all such things as may be required by that Service to facilitate the supervised visits between the child and the Mother.

3. That the father shall do all such things as may be required by the M Community Legal Service to facilitate the supervised visits between the child and the Mother.

4. That upon the mother contacting the service in Order 7 above, the mother shall then spend time and communicate with the child as follows:

   (a)On one (1) occasion each month supervised by the M Community Legal Service at M in the State of Queensland, for such period up to eight (8) hours as that Service might accommodate (either on-site or off-site) provided that the Mother provides the Father’s solicitor and the Contact Centre with at least fourteen (14) days notice of the date and times upon which she seeks to exercise her time.

5. That after six visits have taken place in accordance with Order 9 (a) above the mother and father shall attend family dispute resolution to discuss the progress of the child’s time with the mother.  The mother’s time with the child will then take place as agreed between the parties.

6. In relation to the family dispute resolution provision in Order 10 above:

(a)The parents shall pay the costs of the Family Dispute Resolution Practitioner equally.

(b)  In the event that they are unable to, for any reason, to have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability.

(c)  The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list.

(d)  If the Father fails to choose then the Mother may choose.

Telephone communication

1. The child shall communicate with her parents on the telephone at such times as the child reasonably requests but otherwise each parent may telephone the child at all reasonable times when the child is in the care of the other parent and in relation to such communication each parent shall:

   (a)   ensure that the child is available to receive the telephone call; and

   (b)  ensure that the child has privacy during the conversation.

Miscellaneous

1. That the Mother is to be the primary supervisor for the child at all times whilst the child is living with or spending time with her.

2. The parents shall not (when the child is in their care):

   (a)   Consume alcohol to a level that is above the legal limit prior to or during the time the child is in their presence or care and use their best endeavours to not permit any other person to consume alcohol to a level that is above the legal limit in the presence of the child;

   (b)  Consume illicit substances 48 hours prior to or during the time that the child is in their presence or care and use their best endeavours to not permit any other person to use or consume any illegal substance in the presence of the child.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children's Lawyer be discharged.

4. 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 DIRECTED THAT

1. The Minutes of Consent between the Father and the Independent Children's Lawyer remain upon the Court file.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 402 of 2009

MR DREW

Applicant

And

MS LOWE

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 23 March 2010 a number of orders were made by me effecting parenting arrangements for B, born in August 2007.  Those orders provided, essentially, that the child live with her father and that there would be somewhat restricted time with her mother.  The orders provided that the child’s time with the mother should take place at the M Community Legal Service.

2. This matter has been attended by some significant difficulties and, originally, when transferred to this court was placed in this court’s Magellan list where it was managed.  Procedural orders extend back to 2009 and include orders on 11 November 2009.

3. At the hearing before me on 23 March 2010 the mother was represented by a solicitor.  Subsequently, on 6 April 2010, the mother filed a Notice of Discontinuance, prepared by Ms Kelly who was then the solicitor for the mother.  Accordingly, at the time that the Notice of Discontinuance was filed the mother was represented. 

4. Subsequently, on 26 May 2010, the Independent Children’s Lawyer, and the solicitor for the father, indicated that, as between them, parenting orders were agreed in respect of the child.

5. So as to ensure that the mother’s rights were properly protected I made a series of procedural orders that required the Independent Children’s Lawyer to prepare specific minutes of order and ensure that they came to the attention of the mother. 

6. That was done and the affidavit of Ms Collette, filed on 9 July 2010, confirms that those orders were carried out in their terms. It also deposes to a conversation between Ms Collette and the mother occurring on 2 July 2010.  During that conversation the mother confirmed that she had seen and read the orders and other documents forwarded to her in accordance with my orders. 

7. During the course of that conversation Ms Collette deposes that she said to the mother: “Do you have any view about the court orders?” The mother replied: “As I said, I’m finished with it Lysette.  I’ve got another bub on the way.”

8. Ms Collette goes on to depose to the fact that she specifically said to the mother that the court would be looking to make the orders contained in the documentation which she received when the matter came before me today.  Ms Collette deposes that:

   [I] then asked [the mother] whether she would participate by telephone when we were next in court on 28 July 2010 so that his Honour could hear from her what her view was.

   Ms Collette records the mother saying:

   I don’t want anything more to do with it.  I’m finished with it.

9. The orders proposed by the Independent Children’s Lawyer and the father provide for the child to live with the father and, should the mother so choose, for there to be what might be termed a graded introduction to time between the child and the mother commencing with occasions supervised by the M Community Legal Service.

10. It will be recalled that an order was made to that effect on an earlier occasion.  The proposed orders provide that, after six visits have taken place at the M Community Legal Service, the Family Dispute Resolution centre shall be availed of with a view to discussing the progress of future time between the child and her mother. Otherwise, a number of orders provide that the mother, should she so choose, can avail herself of information as to the child’s progress and whereabouts. 

11. In the particular circumstances of this case it seems to me that the orders proposed by the Independent Children’s Lawyer and the father are in the child’s best interests.

12. I accordingly make orders in accordance with the minutes of consent provided to the court by the Independent Children’s Lawyer and signed by each of the father and the Independent Children’s Lawyer save that those orders refer to the orders being made by consent.

13. I will delete the reference to the orders being made by consent and, instead, will preface the orders in this fashion:

    As, and by way of consent as between the father and the Independent Children’s Lawyer and in default of appearance by the mother, it is ordered as follows…

    and thereafter order in accordance with paragraphs 1 though 12 of the minutes signed by the Independent Children’s Lawyer and the father.

14. I’ll otherwise make the usual orders removing the matter from the pending cases list, the return of subpoenaed documents and the discharge of the Independent Children’s Lawyer.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  5 August 2010