Ellingford and Birchall

[2018] FamCA 1005

FAMILY COURT OF AUSTRALIA

ELLINGFORD & BIRCHALL [2018] FamCA 1005

FAMILY LAW – PRACTICE AND PROCEDURE – Availability of Orders.

Family Law Act 1975 (Cth)

APPLICANT: Ms Ellingford

RESPONDENT: Mr Birchall

FILE NUMBER: SYC 7219 of 2015

DATE DELIVERED: 29 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 26 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Winning

SOLICITORS FOR THE APPLICANT: Barkus Doolan

THE RESPONDENT: Mr Birchall appeared on his own behalf by telephone link

Orders

By consent it is ordered as follows:

1. The parties are granted leave to provide a sealed copy of the Orders made by the Honourable Justice Stevenson on 18 July 2018 to:

   1.1any education providers, including before and after school care facilities that are involved with the children, X born … 2011 and Y born … 2012.

   1.2educational specialists including but not limited to occupational therapists and speech pathologists.

It is ordered further:

1. The parties be granted leave to provide a sealed copy of the Orders made by the Honourable Justice Stevenson on 18 July 2018 to the children's medical/allied health care providers including but not limited to therapists, counsellors, psychologists and/or psychiatrists.

2. Otherwise, the purported Amended Application in a Case filed by the mother on 22 November 2018 and the purported Response to an Application in a Case filed by the father on 23 November 2018 are dismissed.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7219 of 2015

Ms Ellingford

Applicant

And

Mr Birchall

Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 18 July 2018 I made final parenting Orders in relation to the parties' children:

   ·X born in 2011 (7) and

   ·Y born in 2012 (6).

   These Orders followed a three-day trial in May 2018.

2. On 22 November 2018 the mother, Ms Ellingford, filed a purported Application in a Case by which she sought the following orders:

   1.That leave be granted to list this matter before Her Honour Justice Stevenson, the Trial Judge, on the first date available.

   2.That the parties be granted leave to provide a sealed copy of the Orders made by the Honourable Justice Stevenson on 18 July 2018 ("the Final Orders") to:

   2.1Any education providers, including before and after school care facilities that are involved with the children,
   [X] born … 2011 and [Y] born … 2012 ("the children");

   2.2The children's medical/allied health care providers including but not limited to therapists, counsellors, psychologists and/or psychiatrists;

   2.3Educational specialists including but not limited to occupational therapists and speech pathologists.

   3.That Order 12 of the Final Orders made 18 July 2018 be varied such that it reads as follows:

   "12.     For a period of three years from the date of these orders the parties facilitate supervision of changeovers by an agreed person or a member of staff of [BB Group] (or another agreed supervision agency) with each party to pay half of the cost of any such professional supervision."

   3.4.     That the father pay the mother's costs of and incidental to this Application."

3. On 23 November 2018 the father, Mr Birchall, filed a purported Response to an Application in a Case, by which he sought the following orders:

   1.[Mr S], [Dr U], [Dr T] and all other practitioners associated with [V] Paediatrics and [Mr S's] practice, be disallowed from having any association with the children.

   2.That Order 4 of the Final Orders be discharged and that amendments be made to Order 5 and Order 6 to reflect this change.

   3.That the father provide to the Court a copy of the signed Irrevocable Authority directed to [Mr C], dated 23 July, 2018.  The mother's legal representative be given leave to sight this document, but prevented from taking a copy or communicating the contents of said document.

   4.In the event this matter proceeds to a contested hearing, the Court reappoint the Independent Children's Lawyer, Mr Duncan Holmes, with Mr Holmes' costs to be equally shared between the parties.

   5.That the mother pay all costs of and incidental to this Application.

4. At the outset, I observed that there were no extant proceedings when the parties filed this purported Application in a Case and Response thereto.  Each of the parties sought either fresh parenting orders or a variation of the Orders made on 18 July 2018.  It thus appeared to me that the correct procedure would have been for the mother to file an Initiating Application and the father a Response thereto.  In my view, each of the parties should have the opportunity to test the evidence proffered by the other before the making of any further parenting orders.

5. For these reasons I indicated at the purported interim hearing, in a Duty List on 26 November 2018, that I would entertain only the relief sought by the mother in paragraph 2 of her document.  I indicated further that I proposed otherwise to dismiss the purported Application in a Case and Response thereto.

6. The father informed me that he was prepared to consent to orders in terms of paragraphs 2.1 and 2.3 of the mother's document.  Accordingly, the only issue was whether the mother should be granted leave to provide a copy of the Orders of 18 July 2018 to the children's treating health professionals.  The father opposed the granting of such leave on the basis that he objected to the children consulting staff of the V Paediatrics Clinic and Mr S, a psychologist who has been seeing X since November 2015.

Consideration

1. Order 1 of 18 July 2018 concerned the allocation of parental responsibility and read as follows:

   1.1.1     The parties have equal shared parental responsibility for making decisions for the long-term care, welfare and development of the children:

   ●      [X] born on … 2011 and

   ●      [Y] born on … 2012

   ("the children") subject to Order 1.2.

   1.2In the event that the parties are unable to agree upon decisions concerning the children's health or education within 28 days of one party putting forward a proposal as to the same in writing to the other party, the mother has sole parental responsibility for making such decisions and the mother shall keep the father informed of all such decisions.

   1.3The mother has responsibility for making decisions for the
   day-to-day care of the children when the children are living with her, and the father has responsibility for making decisions for the day-to-day care of the children when they are spending time with him.

2. It seems to me that the children's treating health professionals should be made aware of the allocation of parental responsibility as between the mother and the father, as should their education providers and specialists.  It seems abundantly obvious that staff of the V Paediatrics Clinic and Mr S would not be the only treating health professionals of the children.  For example, they must have a regular general practitioner and a dentist who should be informed of the legal position in relation to parental responsibility.

3. The father is at liberty to make an application in relation to Mr S and staff of the V Paediatrics and indicated that he proposes to do so.  Meanwhile, I consider that all of the children's treating health practitioners should be made aware of the Orders of 18 July 2018.  Accordingly, I will make an Order as set out in paragraph 2.2 of the mother's document.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 29 November 2018.

Associate:

Date:  29 November 2018