Every and McNaught

[2014] FamCA 977

FAMILY COURT OF AUSTRALIA

EVERY & MCNAUGHT [2014] FamCA 977

FAMILY LAW – PARENTING – CONSENT ORDERS – Father to have sole parenting responsibility.

APPLICANT: Mr Every

RESPONDENT: Ms McNaught

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Devine

FILE NUMBER: MLC 4057 of 2010

DATE DELIVERED: 17 January 2014

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Johns J

HEARING DATE: 17 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: McDonald Slater & Lay

COUNSEL FOR THE RESPONDENT: Ms  Steiner

SOLICITOR FOR THE RESPONDENT: Lucy C Steiner

Orders

BY CONSENT IT IS ORDERED

1. The Father have sole parental responsibility for the children B born … 2002 and C born … 2003 (“the children”).

2. At least 28 days prior to making any decision about the children’s schooling or medical conditions:

   a.The Father notify the Mother via email or letter about such decision and the options available; and

   b.The Mother provide the Father with any input that she desires to make with respect to the decision, within 14 days of such notification via email or letter; and

   c.The Father consider the Mother’s input; and

   d.The Father advise the Mother of his decision as soon as practicable.

3. The children live with the Father

4. The children spend time and communicate with the Mother:

   a.Commencing not before 3 April 2014, at times and places as directed by E Care Children’s Contact Service, if possible for 2 hours each week, such supervision to be at the Father’s sole expense;

   b.After the expiration of four months of regular supervised time pursuant to Order 4 (a) hereof, with the Mother attending with no more than one unexplained absence:

   i.Contingent upon the Mother’s successful completion of four months consecutive clean urine drug screens pursuant to Order 6 hereof, the time the children spend with the Mother occur each alternate Saturday from 9am to 5pm.

   ii.In the event the Mother does not complete four months consecutive clean urine drug screens pursuant to Order 6 hereof, the time the children spend with the Mother occur each alternate Saturday for a period of two hours, supervised by a professional supervision agency as agreed between the parties (and failing agreement by F Family Services), such supervision to be at the Mother’s sole expense.

   c.After the expiration of three months of time pursuant to Order 4 (b) (i), and subject to the Mother providing three further monthly drug screens pursuant to Order 6 hereof, the time the children spend with the Mother occur:

   i.each alternate weekend from 9am Saturday until 5pm Sunday;

   ii.Each alternate Christmas Day from 9am to 5:00pm commencing 2014; and

   iii.Each alternate Boxing Day from 9am to 5pm commencing 2015.

   d.By telephone each Wednesday and Sunday, the mother’s and the children’s birthdays, between 6pm and 6:30pm, and for the purpose of such communication:

   i.While Order 4(a) and/or (b) is in effect, such time is to be supervised by the Father, on speakerphone, and the Father may terminate the call in the event that the Mother and/or the children engage in inappropriate conversation;

   ii.While Order 4(c) is in effect, on an unsupervised basis.

   e.Such further and other time as may be agreed in writing.

5. The Mother and the Father do all things and sign all documents as may be required to enrol in the supervised contact service at E Care Children’s Contact Service, Suburb D, for the purposes of Order 4 (a) hereof.

6. The Mother undertake supervised urine drug screens at the request of the Father and/or his solicitors in writing to the mother’s solicitors, within 36 hours of receipt of a request, at her expense, such requests to be not more than one per calendar month, and provide the results to the Father and/or his solicitors as soon as practicable upon receipt, and such requirement for drug screens to cease upon the Mother providing twelve consecutive months of clean supervised urine drug screens.

7. In the event that the children (or either of them) attend upon the Mother’s home (or otherwise come into the care of the Mother) prior to 3 April 2014, the Mother return the children (or either of them) to the Father forthwith.

8. The Father forthwith arrange an appointment for a review and ensure that the children remain under the care of a paediatrician as recommended by Dr J and follow all recommendations of the paediatrician, including as to medication, counselling and treatment.

9. The children attend G School for the remainder of their primary education, unless otherwise directed by the Department of Education.

10. Both parents be entitled to receive, directly from the children’s school, at their own expense (if any), all school newsletters, photograph order forms and the like, subject to any school policy thereto.

11. The Mother, her servants and agents, be restrained from attending upon the school to converse with or otherwise contact the children (or either of them), unless invited specifically to do so by the school principal or his nominee, in writing.

12. The Mother and the Father keep each other informed of their residential address and contact telephone number, and an active email address, and inform the other not less than 24 hours prior to any change thereto.

13. The Mother and the Father inform the other forthwith (via SMS text message) of any medical emergency involving the children (or either of them), including the name and address of any treating medical practitioner, and authorise the other to contact the treating medical practitioner to discuss the child’s diagnosis, treatment and prognosis.  Nothing in this Order will disturb the parental responsibility as set out in Order 1 hereof.

14. All changeovers that do not occur at E Care Children’s Contact Service occur at Suburb H Police Station.

15. Each party be and is restrained from physically chastising the children (or either of them).

16. The Mother be restrained from consuming or being under the influence of illicit substances for 24 hours prior to and during all time the children are in her care.

17. The Mother and Father do all acts and things necessary to withdraw the Intervention Order proceedings No. … commenced on 2 / 5 / 2013.

18. The Mother be permitted to attend upon any of the children’s treating medical practitioners for information and advice concerning the children’s conditions.

19. The Independent Children’s Lawyer service a copy of these Orders upon the Principal of G School. 

20. As soon as practicable, the Independent Children’s Lawyer and Ms I forthwith meet with the children to explain to them the meaning of these Orders.

21. The Independent Children’s Lawyer be discharged as and from 14 February 2014.

22. All extant Applications be otherwise dismissed.

23. That pursuant to Sections 62B and 65DA of the Family Law Act 1975 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 the 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

NOTATION

A.In the event there is non-compliance with Order 7 hereof, the Father have liberty to apply at short notice and any Application be listed before Justice Johns.

B.Ms. Barker of the Department of Human Services was present when these Orders were made.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Every & McNaught 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 MELBOURNE

FILE NUMBER: MLC 4057 of 2010

Mr Every

Applicant

And

Ms McNaught

Respondent

REASONS FOR JUDGMENT

1. These are oral reasons for judgment.

2. On the morning of the fifty day of hearing, the parties in this matter have sought that I make final orders by consent.  Having heard submissions, I take the view that the order as proposed in the minute of consent order is not inconsistent with the interim intervention order.  Therefore, I do not consider it necessary to make the declaration as would otherwise be required pursuant to the provisions of the Family Law Act, particularly section 68P.  I will delete paragraph 19 of the proposed minute which then brings us to the orders in relation to the future involvement of the Independent Children's Lawyer.  .

3. The proceedings relate to the parenting arrangements for the two children, B born in 2002 and C born in 2003.  I have had the opportunity of hearing evidence from both the mother and the father.  I have also had the benefit of hearing evidence from the family consultant, Ms I, who was cross-examined by counsel for all parties.

4. This matter has a long history of involvement, both with the Family Court and in the Children's Court.  The question of the children's living arrangements has been an issue between these parties since at least 2005.  There have been very serious allegations made against the father in terms of his conduct towards the children.  There, likewise, have been very serious allegations levelled against the mother in terms of her ability to care for the children because of her health issues, including issues around her ongoing use of cannabis. 

5. Further, I have heard a significant amount of evidence in relation to the difficulties the children face, both in terms of behavioural issues, particularly in respect of C, and issues around their attendance at school particularly since 2010. These issues centre around their increasing difficulties with arriving at school on time, their failure to arrive at school at all, with such failures often being unexplained.

6. Since 24 December 2013, as a result of a recovery order made by Macmillan J, the children have been in the care of their father.  During the course of these proceedings before me, Ms I, Family Consultant, had the opportunity of interviewing the children on two occasions; first in October 2013 and second, approximately three and a half weeks after they had been placed in their father’s care.  Ms I's evidence was striking insofar as the changes she observed to have taken place in the children's presentation since the time of her initial observations of the children during her interviews for the preparation of her first family report in October 2013. 

7. During the course of her evidence yesterday, Ms I noted the contrast in the children.  She noted that on Wednesday this week the children presented as polite, friendly, and co-operative. She further noted that they appeared settled, that they were able to interact with each other and, that they were able to engage with her in a co-operative fashion.  This is in stark contrast to the earlier observations she made as contained in her first family report. 

8. I am satisfied, having heard all of that evidence, that the proposed arrangements as set out in the consent order signed by the parties are in the children's best interests. 

9. I am required to have regard to the factors set out in section 60CC, being the additional and primary considerations in relation to an assessment of what is in the children's best interests.  I have had regard to those factors and, in doing so, am satisfied that the proposed minute of orders will certainly advance the welfare and the best interests of these children.  Accordingly, I will make orders in the terms of the minute signed by the parties and as amended during the course of my discussion with counsel for the parties today.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 17 January 2014.

Associate: 

Date:  17 January 2014