Ellis & Cicero (No 2)

[2012] FamCA 685

FAMILY COURT OF AUSTRALIA

ELLIS & CICERO (NO. 2) [2012] FamCA 685

FAMILY LAW – CHILDREN - Where the matter is part-heard - Where the parties consent to interim Orders for contact pending the resumption of the trial - Where the parties remain in dispute about the length of time the daughter should spend in the Father's care – Where a 65L Order is made for the Orders to be explained to the children

Family Law Act 1975 (Cth)

APPLICANT: Mr Ellis

RESPONDENT: Ms Cicero

INDEPENDENT CHILDREN’S LAWYER: Ms Hawdon

FILE NUMBER: BRC 3079 of 2010

DATE DELIVERED: 14 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 13, 14 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kirkman-Scroope

SOLICITOR FOR THE APPLICANT: Allansons Solicitors

COUNSEL FOR THE RESPONDENT: Mr Laws

SOLICITOR FOR THE RESPONDENT: Odyssey Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Best Wilson

Orders by Consent

1. The Mother and the Father shall:

   (a)       Keep the other parent informed at all times of their residential and e-mail addresses and mobile contact telephone numbers;

   (b)       Keep the other parent informed of the name and address of the school the child attends;

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

   (d)       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.

1. The parents authorise by this Order the school or daycare centre attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of their school reports, photographs, certificates and awards obtained by that child (at that parent’s cost).

2. The parents shall ensure that the school or daycare is provided with the parents’ details on the children’s school or daycare enrolment and a copy of these Orders.

3. During the time the child is living 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 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.

1. The child, N, born … May 2007, live with the Mother.

2. The child, C, born … March 2005, live with the Father.

3. Both parents enrol at the L Contact Centre within seven (7) days for changeovers and for the purpose of this Order:

(a)       The parents share all costs equally;

(b)       The parents do all acts and all things reasonably required of them by the L Contact Centre.

1. All changeovers will occur at the L Contact Centre and if it is not available to the parties, changeovers will occur inside the P McDonald’s Restaurant.

2. The parents will ensure that they facilitate the children being able to telephone the other parent at any reasonable times that the children express a desire to do so.

3. The Mother and the Father will be at liberty to telephone the children in the care of the other parent on Tuesdays and Thursdays with the call of commence between 6.30 pm and 7.00 pm, with each parent to initiate the call to the other parent’s landline telephone number.

4. Within seven (7) days of the date of these Orders, the Father enrol in an Anger Management Program and a Parenting Program and, upon completion of those programs, provide a copy of the certificate of completion to the other parties.

5. For the purpose of Order 11, the Father notify the Independent Children’s Lawyer of the courses in which he has enrolled and the Independent Children’s Lawyer be at liberty to provide a background to the course co-ordinator of the programs.

6. Within seven (7) days, both parents enrol in a post-separation parenting program and, upon completion of that course, each provide a copy of the certificate of completion to the other parties.

7. The Independent Children’s Lawyer be at liberty to request a random drug test from the parents and that upon such request the parents will submit to a drug test, pay all costs associated with the drug testing and provide a copy of the results of the drug test to the other parties within forty-eight (48) hours of receipt.

8. Pursuant to s 65L of the Family Law Act 1975 (Cth), the parents cause both N, born … May 2007, and C, born … March 2005, to attend at the Child Dispute Services at the Brisbane Registry of the Family Court of Australia at 10.00 am on Friday 17 August 2012 for the purpose of a Family Consultant explaining these Orders to both N and C.

Further Orders

1. The child, N, born … May 2007, spend time with the Father and C:

(a)       Commencing Saturday 25 August 2012, for a period of four weeks, each alternate Saturday from 9.00 am until 12.00 midday and the Sunday immediately thereafter from 9.00 am until 12.00 midday; and

(b)       Thereafter each alternate Saturday from 9.00 am until 5.00 pm and the Sunday immediately thereafter from 9.00 am until 5.00 pm.

1. The child, C, born … March 2005, spend time with the Mother and N:

(a)       Commencing Saturday 18 August 2012, each alternate weekend on Saturday from 9.00 am to 5.00 pm and Sunday from 9.00 am until 5.00 pm.

1. The matter be adjourned part-heard for a further one day of trial commencing at 9.00 am on 19 October 2012.

2. Each party file and serve any further updating affidavit material by 4.00 pm on 12 October 2012.

3. The Independent Children’s Lawyer shall arrange for an updated Family Report to be prepared by Ms A provided that Legal Aid Queensland provides funding for such report. For the purpose of such report, the parties shall:

(a)       do all acts and things necessary to facilitate the completion of that report, including:

(i)attending any interviews scheduled by Ms A; and

(ii)causing the children to attend any interviews scheduled by Ms A.

1. The subpoena requiring Ms O to attend this Court to give oral evidence be enlarged to further require her attendance on 19 October 2012 from 9.00 am.

1. The witness Ms H Ellis be given a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) in respect of her answers given in Court this day to questions relating to Ms H Ellis’ drug use.

Notation

It is noted in respect of paragraph 8 of these Orders that L Contact Centre is unlikely to be available to the parties prior to the recommencement of the trial of this matter on 19 October 2012.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3079 of 2010

Mr Ellis

Applicant

And

Ms Cicero

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The trial of this matter was set down for two days, commencing yesterday and to conclude today. Unfortunately, in the events that have unfolded, it is not possible for the trial to be completed in that two day period and an Order will be made for the trial to be adjourned until one day commencing 19 October 2012.

2. The issue currently is the interim Orders that ought be made pending the resumption of the trial. I propose to give reasons for the decision I make as to the interim Orders I propose to make at the time of delivering judgment with respect to the substantive trial. All I need to observe at this point is that on the proposed interim Orders as between the parties, the issue with respect to N spending time with the Father comes down to whether the time period be limited to 9.00 am to 12.00 midday for each of the relevant periods over the period of about nine weeks until the trial resumes, or whether, after a couple of visits of 9.00 am to 12.00 midday, that period be extended to a full day.

3. Briefly, Mr Laws submits that it is unknown how N might react, and that the benefit of a Family Report would be needed for the purpose of determining the impact upon N of a time period such as 9.00 am to 5.00 pm. However, it seems to me that on the best evidence in terms of expert evidence currently held, is the report of Ms A filed with her affidavit of 25 January 2012, which contains recommendations as to periods each of the children were to spend with their parents. Whilst all of that evidence is yet to be tested, as Ms A is yet to give evidence at the trial, I note that what she had in contemplation as per paragraph 77 of her report was an initial period of alternate Saturdays or Sundays from 9.00 am to 5.00 pm for both children, with the children alternating between their parents’ homes.

4. To the extent Mr Laws submits that there is no expert evidence, I disagree.

5. In the circumstances, I propose to accede to the Father’s application, supported by the Independent Children’s Lawyer, with respect to there being an initial period of two visits as contemplated by the Orders from 9.00 am until 12.00 midday after which the periods should be extended from 9.00 am until 5.00 pm on each of the weekend days.

6. Otherwise I make Orders as per the agreed Orders between the parties. There will also be an Order pursuant to s 65L of the Family Law Act 1975 (Cth) for a Family Consultant attached to the Court to assist the parties and the children. There will also be an Order that the parties ensure that each of C and N attend Court this Friday 17 August 2012 by 10.00 am for the purpose of the 65L Order, and in particular for the Family Consultant to explain to the children and assist the children in terms of the interim Orders I have made. There will also be a notation to the Order that it is acknowledged that the L Contact Centre is unlikely to be available to the parties prior to the resumption of the trial on 19 October 2012, simply so that there is no doubt about the meaning of paragraph 8 of the Orders.

7. Otherwise I will give my full reasons for the interim Orders, to the extent that it is necessary to do so, at the time of delivering judgment in the substantive proceedings at the conclusion of the trial on 19 October 2012.

8. The other issue raised was as to an Order that the parties have liberty to apply. It seems to me that, with respect to parenting Orders, there is never a limitation on parties being able to bring the matter back to Court; however, that said, this is a case where it is a relatively short period between now and the resumed trial on 19 October.

9. When Orders of this kind are made, they ought be complied with, and usually they fail only because one or both parents embarks upon some plan to sabotage the Orders because they do not assist the children in the way they should in terms of allowing the children to freely move between their parents in accordance with the Orders. Experience also suggests that such steps in sabotage usually reveal themselves in circumstances where a further Family Report is to be undertaken and the matter is to come back to trial.

10. Those things noted, common sense would dictate that parents who are sensitive to the needs of their children would assist those children as much as possible to accommodate the Orders and would, in circumstances for example where C reacts badly to spending time with his mother or N reacts badly to being with her father, that there be accommodations for children in that respect made by the parents. There has been a suggestion by Counsel for the Mother that the Father may have a, “…meltdown…” of the kind that has been the subject of the evidence. It seems to be that if that occurs, inevitably the matter may have to come back to Court but whether or not the Court now grants liberty to apply, that will be the position and no doubt the Independent Children’s Lawyer would be informed of that event and would seek to bring the matter back to Court.

11. Therefore, I do not propose to make a specific Order about liberty to apply, but nor do I propose to make any Order that would suggest that the parties are prevented from exercising their rights in that respect, but I am simply making those observations for their benefit in terms of the matter being brought back to Court without sufficient justification between now and 19 October 2012.

12. I expect that when I make orders, the Orders will be complied with, and that parents will do what they need to do, in particular in accommodating their children’s needs in having their children be comfortable with the Orders that are made.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 14 August 2012.

Associate: 

Date: 17 August 2012