Eneroy and Eneroy and Anor

[2007] FamCA 1041

FAMILY COURT OF AUSTRALIA

ENOROY & ENOROY AND ANOR [2007] FamCA 1041

FAMILY COURT – CHILDREN – parties resolve – ICL reservations – orders as per agreement

APPLICANT: MR ENOROY

RESPONDENT: MRS ENOROY

INTERVENER: MS SPENDER

FILE NUMBER: BRF 3592 of 2006

DATE DELIVERED: 25 June 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 25 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McDiarmid

SOLICITOR FOR THE APPLICANT: Wallace Davies Solicitors

COUNSEL FOR THE RESPONDENT: Ms Howe

SOLICITOR FOR THE RESPONDENT: Parker Zande Lawyers

THE INTERVENER: Appeared in person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Burridge

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. Orders be made in accordance with the Minutes of Orders made this day and attached hereto.

1. The Intervener, Ms Spender, be given leave to withdraw.

1. Pursuant to s65DA(2) and s62B, 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 NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Enoroy & Enoroy and Anor.

MINUTES OF ORDERS

1. That the children, …, born … May 1994, …, born … May 1994, …, born … September 1995 and …, born … November 2001 live with the father.

2. That the Mother spend time with and communicate with the children at all times as may be reasonably agreed between the parties, failing which as follows:-

   1. In 2007, commencing 13 July 2007, and subject to paragraph 2.1 d. below, each alternate weekend during the school term from after school Friday until before school Monday with the mother to collect the children from school and return them to school;
   2. In 2008, and subject to paragraph 2.1 d. below, each alternate weekend during the school term from 5.00pm Friday until 5.00pm Sunday;
   3. For one-half of all school holidays commencing September 2007, and subject to paragraph 2.1 d. below, and in particular for the first half in even years and the second half in odd years;
   4. From 3.00 pm Christmas Eve until 3.00 pm Christmas Day in odd years;
   5. At all school functions to which parents are ordinarily invited including but not limited to sports day, carnivals, concerts, plays, fetes and parent teacher interviews;
   6. By telephone at all reasonable times as agreed;
   7. That all special events involving the mother’s birthday and the mother’s family including but not limited to the mother’s nieces and nephews birthdays provided that the father receives reasonable verbal notice to that effect and provided further that the mother permit the said children to attend upon any special events involving the father’s family which occur when the said children are spending time with her on the same basis;
   8. On the children’s birthdays, all children shall spend time with the mother, if the birthday falls on a school day, from after school until 6.00 pm that night, at any other time, 9.00 am – 3.00 pm;
   9. On Mother’s Day from 9.00 am to 5.00 pm if it falls on a weekend when the children are not spending time with the mother;
   10. If Father’s Day falls on a weekend when the children are not spending time with the father, then the children are to be returned to the father by 9.00 am on such date.
   11. That the children be returned to the father between 3.00pm Christmas Eve and 3.00pm Christmas Day in even years;

2.1a.     That the father forthwith provide the mother with a list of three counsellors to undertake family violence, anger management and sexual abuse counselling with the mother and Mr C, such counselling to involve the children as determined by the counsellor involved, and the father shall consider including Mr S’s name on that list;

b.That the mother select a counsellor from the list provided by the father and thereafter the mother and Mr C undertake counselling as directed by the counsellor with a view to the children spending time with the Mother in the presence of Mr C;

c.That upon the counsellor concluding that the counselling is complete, the counsellor, if appropriate, is to  provide a written recommendation to the father that the children may come into contact with or spend time with Mr C;

d.Until such time as the counsellor makes the recommendation referred to in paragraph (c) above, the mother spend time with the children without Mr C being present and such time shall occur every third weekend;

e.That the Mother provide the counsellor with a copy of the report of Mr B (including two addendum reports) dated 15 April 2007 together with a copy of this Order.

1. a.     That commencing in 2008 the children attend A                Primary School and O High School;

   b.        That the Mother and Father take all steps necessary with the Principal/Secretary of the school/s at which the said children are enrolled from time to time to enable the Mother and Father to receive at his/her address and at his/her expense, copies of the said child’s school reports, school photographs and newsletters of functions.

2. For the purposes of paragraph 2, with the exception of 2(a) above, and unless otherwise agreed, changeover shall occur at McDonalds Family Restaurant, M.

Final specific issues orders sought by the Independent Children’s Lawyer:

Children to Continue to Attend Counselling

1. That Mother/Father ensure the children continue to receive counselling from a suitability qualified counsellor ( psychologist or social worker) as and when directed or requested to attend by that counsellor, specifically to address the issues of parental separation, and domestic violence and sexual abuse.

2. That the Mother and Father abide by recommendations of the children’s counsellor as to the frequency of the children’s attendance, any other persons attendance as directed or requested by the counsellor, or any recommendations as to the children spending time with the mother.

Information about the parents and children.

7. That the Mother and Father keep each other advised of their address and telephone number and advise within 48 hours of any anticipated change to those details and the basis for the change and within 48 hours of any change of the updated details.

1. That the Mother and Father advise each other as soon as practicable of any medical emergency involving the children, requiring medical treatment by a hospital or medical practitioner whilst the children are in their care (including any supervised time), including the name of the treating doctor and hospital and if known the contact number.

2. That the Mother and Father keep each other advised in writing of the medical practitioners and schools the children attend, and advise within 7 days of any change to those details and the basis of the change.

3. That these orders operate as an authority for the Mother and Father to obtain information, results and reports from the children’s school medical practitioners, and other professionals who treat, consult with or interview children, at the expense, if any, of the party requesting the information, result or report about the children.

Injunctions & Prohibitions on the conduct of the parents & others

1. That the children have no contact whether direct or indirect with their Paternal Grandfather and with the person Mr G.

2. The Father shall not bath, dress or undertake sexual education of the three female children.

3. That neither the Mother nor Father, nor their partners use or be affected by alcohol (to the legal limit for driving in Queensland) and illicit drugs whilst the children are in their care nor for 24 hours prior to the children being in their care, and remove the children immediately from the presence of persons suspected of being affected by illicit drugs.

4. That neither the Mother and Father not criticise, denigrate demean or belittle or ridicule each other or any member of the parents family or household in the presence of or hearing of the children and will remove the children from the presence of persons who are doing so.

5. That neither parent physically discipline the children nor permit others to do so.

6. That the mother shall ensure that the children are wearing correct school uniform and that she provides packed lunches for the children when delivering them to school.

7. That neither parent nor their partners expose the children to domestic violence and each parent shall remove the children immediately from any circumstance of domestic violence.

8. That neither the Mother and Father discuss with, or in the presence of, or hearing of, the children any matter which is the subject of, or relates to proceedings between the parties allegations raised in the proceedings and will remove the children from the presence of persons who are doing so, except where the same occurs at the direction of :-

   1. The children’s counsellor whom the children attend pursuant to these Orders; or
   2. An authorised officer of a relevant state authority investigating allegations or assessing the children or examining the children in response to an investigation conducted by that officer or a person with the express permission of that officer; and/or
   3.  By the Independent Children’s Lawyer, in the presence of either Mr B or a Family Consultant, to explain the Orders made to the children.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3592 of 2006

MR ENOROY

Applicant

And

MRS ENOROY

Respondent

And

MS SPENDER

Intervener

REASONS FOR JUDGMENT

EX TEMPORE

1. I notice that the orders are otherwise signed by the parties.  I note the position of the Independent Children's Lawyer and understand and appreciate it.  I note from the terms of the proposed orders that all four children are to reside primarily with their father.  It would appear that, on the face of those proposed orders, the mother has received and been prepared to accept what I regard as sound advice.  I appreciate that that position would be a difficult one for her and that, in that sense, these orders have required her to make sacrifices, as it were, and an acknowledgement of the need to put the interests of all four children ahead of her own understandable aspirations to perhaps have one of the children reside with her on a full-time basis.

2. As to the orders and the reservations of the Independent Children's Lawyer, there are outstanding issues not resolved by this proposed consent order.  The difficulty for the parties, the Court and the Independent Children's Lawyer is that significant concerns were raised about aspects of each of the households, so that there has not been available to the Court or the parties an outcome that did not carry with it some residual concerns and reservations.

3. As I understand the allegations in relation to the father, and exercising all caution one should in relation to such matters which have not been tested and the full detail not placed before the Court, if there is a scale of inappropriate conduct in relation to such matters, as I understand the particulars alleged against the father, they are at a level that would not be described as being at the higher end of the scale.  It seems the girls are at least managing that issue in their own way and apparently have discussed the matter with their father and they remain comfortable with the resolution of the matter and, notwithstanding difficulties in the past, state, at least in relation to the oldest female child, she has a preference to reside with the father and, in the case of the middle female child in terms of her stated preference, she was happy to spend extended time with her father.

4. There was not a contest before this Court in relation to three of the children and the options available to the Court, given the withdrawal of the intervener, are limited.  Whilst the remarks I have made do not erase the legitimate concerns of the Independent Children's Lawyer, in terms of the role of the Court and having particular regard to the thorough analysis of the options and recommendations of Mr B, the options proposed by these orders are probably the most appropriate options.  I am therefore content that I should make these orders, which I do so.

   RECORDED  :  NOT TRANSCRIBED

5. On that basis, I again commend the legal representatives and the parties for the efforts they have all applied in reaching resolution of the matter.  I make orders in those terms.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: