Grace and Grace

[2009] FamCA 308

FAMILY COURT OF AUSTRALIA

GRACE & GRACE [2009] FamCA 308

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Child’s views

APPLICANT: Mr Grace

RESPONDENT: Ms Grace

FILE NUMBER: SYF 6966 of 2000

DATE DELIVERED: 18 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 17 &18 March 2009

REPRESENTATION

FOR THE APPLICANT: The Applicant Father appeared on his own behalf

COUNSEL FOR THE RESPONDENT: Mr Jordan of Counsel

SOLICITOR FOR THE RESPONDENT: Simonidis Shoebridge Lawyers of Brisbane

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Bourke of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Legal Aid Queensland, Woodridge

Orders

BY CONSENT IT IS ORDERED:

1. That all previous Orders in this matter be discharged.

2. That the Mother have sole parental responsibility for the long-term care, welfare and development of C, born … February 1993, and R, born … September 1998, (“the children”), including any decisions related to major long-term issues.

3. That the Mother have sole responsibility for the day to day care, welfare and development of the children whilst the children are in her care.

4. That the children live with the Mother

5. Notwithstanding the father’s wishes to regularly spend time with C and maintain a relationship with him, that the father not seek formal orders in relation to him spending time with C on an ongoing basis, rather C spend time with the father as per C’s wishes or as agreed between the parties, and the mother is to encourage and facilitate C spending time with his father.

6. Notwithstanding the father’s wishes to regularly spend time with R and maintain a relationship with him, that the father not seek formal orders in relation to him spending time with R on an ongoing basis, rather R spend time with the father as per R’s wishes or as agreed between the parties, and the mother is to encourage and facilitate R spending time with his father.

7. That the father shall spend time with the children at all such other times as agreed between the children and/or the parties.

8. That both parties be restrained from bringing any application whatsoever in relation to the children, or against each party, without first obtaining the leave of this Honourable Court.

IT IS FURTHER ORDERED:

1. That until such time as an alternative address is provided to the father by the mother, the contact address for the mother shall be the address noted as the mother’s address for service.

2. That as soon as reasonably practicable, the mother shall provide to the father, via her legal representatives, an address or post office box for the purposes of facilitating Order 11 herein.

3. That the father be permitted to send letters, cards and gifts to the children via the address/es referred to at Orders 9 & 10 herein, and the mother shall cause the children to receive such items.

4. That the father is at liberty to exercise his entitlement pursuant to Order 11 not more than six (6) times per calendar year, plus on the children’s birthdays.

5. That the mother provide to the father, via the post office box noted as the father’s address for service, copies of the children’s school reports.

6. That the mother be permitted to remove all identifiable information including, but not limited to, the names and locations of the children’s schools, prior to providing the children’s school reports referred to in Order 13 herein.

7. In the event that the children, or either of them, suffer a serious injury, serious medical condition or require urgent medical attention the father is to be notified as soon as practicable by the mother or her representative with details of the condition or injury.

8. In the event that any of the children suffer an untimely death the father is to be notified immediately or as soon as practicable by the mother or her representative.

9. That the Independent Children’s Lawyer be discharged.

10. That 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.

11. The children attend upon Family Consultant Ms T at 3.30pm on 20 March 2009 to have these ordered explained to them.

12. The mother is to mother maintain an Address for Service to enable the father to comply with Order 11 of these Orders.

NOTATION:

Pursuant to Rule 17.02 of the Family Law Rules 2004 this Order has been amended:

1. By the deletion of the word “mother” in Order 16 and the insertion of the word “father”.

2. By the addition of Orders 19 and 20.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 6966  of  2000

MR GRACE

Applicant

And

MS GRACE

Respondent

REASONS FOR JUDGMENT

1. This case originated many months ago dealing with parenting orders sought by the father in relation to three children of his marriage to the respondent, Ms Grace.  The three children are A, C who was born in February 1993 and R who was born in September 1998.  As a result of the father putting the welfare of his children first, he has come to an agreement concerning his spending time with the children and he has decided, I say quite properly, to at this stage not push for any physical relationship with the children particularly in C and R who are subject to the Act.  A is not and a draft order has been put before me by the child's representative, independent children's lawyer and generally, the most important matters have been agreed upon but there are several matters which have not been.

2. I have the draft before me, and I refer particularly to proposed O 5, 8, 9, 10, 11, 12, 13 and 14.  The other balance of the orders - - -

   RECORDED  :  NOT TRANSCRIBED

3. The one that is causing me most concern is O 5.  That is where the father is proposing that the children return to their birth name of Grace.  I understand that the birth certificates are in the name of Grace but that A has comparatively recently changed her name by deed pool to O.  That the children have been known - the other children, the children the subject of this application - have been known for at least the last six years as O. 

4. The case is a tragic case where, unfortunately, the children have certain views of their father and these views are entrenched.  My concern is what if I do, in effect, force the children or force anybody who deals with them to make sure that their names have been returned to the original Grace for which they were known in the early stages of their life.  I say the early stages because some six years ago, R would have only been about 4 or 5 and C would have been around about 10 - for the greater part shall we say of their educational life, they have, in fact, been known by the surname O.

5. I can appreciate the father's request that his only children, I understand he is the father of twins - in his new relationship should be known by his name.  It is very important to him but I have to consider two things, one in particular is this:  there is a very, very fragile relationship - extremely fragile relationship - between the children and their father.  In fact, it would have been said I am sure by the mother there is none at all.  I am hopeful that something will remain out of this absolute disaster.

6. I have just wondered overnight and it has caused me quite some concern as to whether it would be counter productive for the children at this stage to be put in the position where they would have to not only be told that their name was in future to be Grace, that they would have to tell their friends their name is not O but Grace.  They would possibly have various other areas where the names would have to be changed, perhaps the enrolment at schools which I have not been informed of.  Is the benefit of their being known by their birth names more important than the benefit of allowing them to develop, admittedly in a name which does not give to the father that dignity, if I may put it that way, of having his children carrying his name in future?  I regret that I believe that this being the case in which the children's interests must come first that I consider that I could not order that the name be changed. 

7. Insofar as 8 - question of counselling - it is very, very vague.  I must confess that I do not, at this stage, believe that there is any chance of their resurrection.  There must be a period of the father indicating to the children that he is still available and this will come by the subsequent orders that he is still available for them and I can only hope, perhaps it is a faint hope, but I can only hope in the years that come, A is not very good, the years that come that they may start looking to find their father again.  I do not think counselling is going to do any good with that.

8. Insofar as 9 is concerned, the post office box - she has an address for service, Mr Jordan, I can see no reason why the father should not forward the documents, letters and cards that I am going to refer to next to the address for service.  It will be unnecessary then to have a post office box.

9. So far as 10 is concerned, the mother does not oppose the father communicating with the children by way of letters, cards, gifts but submits that in their interest as well as in the father's interest that this not be done on a "willy nilly" basis that there should only be four contacts.  Four contacts is little enough.  I think there should be more than that and I am of the opinion that there should be - the father should be permitted to communicate with the children by way of letters, cards on a period of six times per year but also an extra two times for their respective birthdays which will be special days for them.

10. I can see no reason why the mother should not provide to the father copies of each of the children's school reports with the identity of the school removed and notwithstanding the submissions of Jordan of counsel who has said everything he possibly could on behalf of his client, the mother, I believe that it is essential the father be aware of the progress of his children through their schooling but I make it quite clear that the father, who is a highly intelligent man, would recognise this - if there is any attempt of him to approach the schools or try to identify the schools are, that will loom particularly large and I am sure an application will be brought very quickly and I would not appreciate his doing that.  I am not banning him.  I will just not appreciate it.

11. Twelve - I think that insofar as 12(1) is concerned, it was accepted was it not Mr Jordan with the extra words were details of serious injury but it was 2, 3 and 4 and I agree with Jordan in his submissions that I think that that is unnecessary should he be informed immediately of the serious injuries and he approaches the wife through the address for service and it is refused, I would think that no Court would refuse him the opportunity of seeing the child in hospital.

12. Thirteen - I note that A has been deleted and that it is not proposed that A be involved.  I can see no reason why 13(1) should not be ordered.  13(2) and (3) and (4), I do not, at this stage, feel prepared to make that order notwithstanding it was - if my memory serves me correctly, conceded by the mother that, subject to the children's agreeing that she would - I do not feel that that responsibility should be put upon the children to decide that.  I would have thought that the mother, notwithstanding her attitude towards the father and her belief which, according to the experts, is genuine, that the father is not a proper father, I would think that she would be gravely lacking in any form of sensitivity to not inform the father of such a tragic event.

13. Fourteen - I cannot see any reason for making that order and 16 and 17. 

    ORDER DELIVERED

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:     

Date:              28 April 2009