Hamen and Hamen

FAMILY COURT OF AUSTRALIA

HAMEN & HAMEN

[2008] FamCA 146

FAMILY LAW – CHILDREN – With whom a child lives – counselling of children by psychiatrist / psychologist.

APPLICANT:

MR HAMEN

RESPONDENT:

MRS HAMEN

FILE NUMBER:

HBF

1213

2005

DATE DELIVERED:

20 February 2008

PLACE DELIVERED:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

20 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Trezise

SOLICITOR FOR THE APPLICANT:

Andrea Trezise

COUNSEL FOR THE RESPONDENT:

Mr Waterhouse

SOLICITOR FOR THE RESPONDENT:

P L Corby & Co.

Orders

Orders be made in accordance with the minute of consent order, signed by the parties, initialled by me and dated today’s date, an engrossed copy attached hereto and marked “Exhibit 1”.
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.
All outstanding applications be dismissed.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS DIRECTED
Counsel for the mother provide to my associate an electronic version of the minute of consent order within two days.
A copy of the reasons for these orders be taken out and placed on the Court file.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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

MINUTE OF CONSENT ORDERS

THAT all extant Parenting Orders be and are hereby discharged;

THAT the Father and the Mother have equal shared parenting responsibility for the children of their former marriage, namely:-

(a)T born the … April 1998 (“[T]”);
(b)S born the … January, 2001 (“[S]”); and
(c)J born the … August, 2003 (“[J]”)

collectively known as (“the Children”);

THAT T and S live with the Father during school terms in a recurring fortnightly cycle from after school on Tuesday until the commencement of school the following Monday and shall live with the Mother at all other times during such recurring fortnightly cycle unless otherwise agreed in accordance with order nos 5 (i) and 6 (i) hereof;

THAT J live with the Father during school terms in 2008 in a recurring fortnightly cycle from after school on Wednesday until the commencement of school the following Monday and shall live with the Mother at all other times during such recurring fortnightly cycle and from the commencement of school in 2009 J shall live with each of the parties during school terms in accordance with the provisions of order no 3 hereof;

THAT the Children also live with the Father as follows:-

(a)During Easter school holiday periods as in accordance with order nos 3 and 4 hereof;
(b)From 3.00pm on the day preceding Father’s Day until the commencement of school on the next day in each year;
(c)From 3.00pm Christmas Eve until 3.00pm Christmas Day in 2008 and each alternate year thereafter;
(d)From 3.00pm Christmas Day until 3.00pm Boxing Day in 2009 and each alternate year thereafter;
(e)If on the Birthday of any of the Children the relevant Birthday child is not living with the Father on the morning of such Birthday then the Children shall live with the Father from 3.00pm on the said Birthday until 8.30am the following day;
(f)From 3.00pm on Easter Saturday until 3.00pm Easter Sunday in 2009 and in each alternate year thereafter;
(g)From 3.00pm on Easter Sunday until 3.00pm Easter Monday in 2008 and in each alternate year thereafter;
(h)During school holiday periods in June, September and December/January/February each alternate week from 5.00pm Sunday to 5.00pm the following Sunday;
(i)such additional or alternate times as agreed between the parties from time to time;

THAT the Children also live with the Mother as follows:-
(a)During Easter school holiday periods as in accordance with order nos 3 and 4 hereof;
(b)From 3.00pm on the day preceding Mother’s Day until the commencement of school on the next day in each year;
(c)From 3.00pm Christmas Eve until 3.00pm Christmas Day in 2009 and each alternate year thereafter;
(d)From 3.00pm Christmas Day until 3.00pm Boxing Day in 2008 and each alternate year thereafter;
(e)If on the Birthday of any of the Children the relevant birthday child is not living with the Mother on the morning of such birthday then the Children shall live with the Mother from 3.00pm on the said birthday until 8.30am the following day;
(f)From 3.00pm on Easter Saturday until 3.00pm Easter Sunday in 2008 and each alternate year thereafter;
(g)From 3.00pm on Easter Sunday until 3.00pm Easter Monday in 2009 and each alternate year thereafter;
(h)During school holiday periods in June, September and December/January/February each alternate week from 5.00pm Sunday to 5.00pm the following Sunday;
(i)Such additional or alternate times as agreed between the parties from time to time;
THAT for the purpose of handovers (save and except where handover in these orders provide for the Children or any of them to be returned or collected from School) the parent with whom the Children or any of them are then living shall deliver the Children or child to outside the front yard of the other parent’s home;

THAT both parties refrain from exercising corporal punishment upon the Children or any of them;

THAT both parties not denigrate the other or their respective partners to the Children or a third party in the presence of the Children;

THAT T and S have such counselling or mental health counselling as agreed and failing agreement as directed to the parties by the Childrens’ General Practitioner, Doctor B and both parties do all acts and things necessary and execute any required documents to facilitate T and S or either of them into such counselling directed by the said Doctor B;

THAT each parent provide the other parent with first option to care for the Children or any of them in the event that the first mentioned parent is unable to provide care for a period exceeding one night;

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;

THAT there be no orders as to costs;

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: HBF 1213 of 2005

MR HAMEN

Applicant

And

MRS HAMEN

Respondent

REASONS FOR JUDGMENT

These are proceedings between the father and the mother which were commenced by the father on 28 August 2006.
Accordingly these are proceedings to which the provisions of provision 12A of Part VII of the Family Law Act applies.
The proceedings related to interim parenting of the children of the parties, namely S, who is aged seven; T, who is aged nine, and J, who is aged four.
There were various issues between the parties in relation to the time that the children live with each of them. After the trial commenced, the parties reached an agreement about equal shared parental responsibility.
Both parties submit that the order should be "live with, live with" and both parties submitted that the issue was a number of days the children should live with each of the parents.
The father's case was that the children should live equally with each parent, spending seven days with him and seven days with the mother, and this should continue over the school holiday period.
The mother's case was that the children should live with her nine days a fortnight and with the father five days a fortnight, and that process should continue over the school holiday period.
There was an issue about Easter break and the father sought orders with regard to birthdays.
There was an issue about the place of changeover. There was an issue about counselling for T and S and the parties had agreed that orders ought to be made preventing either from denigrating the other party or their partners in the presence or hearing of the children, and further, that neither party would exercise corporate punishment with regard to the children.
The issues arising were the allegations by the mother and the father's alleged violence, intimidation and abuse of power; the allegations by the father the mother suffered a psychiatric, psychological or other problems, or personality disorder such as she was untruthful about the allegations of violence, intimidation and abuse of power, and that she exaggerated and manipulated facts to exclude the father from the children's life.
There are issues about poor communication and whether the parties were adopting positions to improve their position regarding child support entitlements and the fundamental conflict as between the parties insofar as the children were concerned.
It was apposite to note that the family reporter observed at paragraph 28 in saying:
[T] is confused about why his parents separated and why they cannot just get along and stop fighting. He says that he understands his parents "are fighting to keep us as long as they can". He said he believes his parents would stop fighting if they tried - "a bit like me eating sausages and not eating sausages; just have to try a little bit at a time".
The father is aged 42, the mother is aged 37. They commenced cohabitation in 1993 and separated either in late August or early September 2005.
The parties had married in December 1995 and were apparently divorced in April 2007. They lived together for about 12 years.
After the parties separated, they entered into consent orders on 26 September 2005 which was but three or four weeks after the separation. At that time the father was legally represented and the mother was acting for herself, but in fairness the mother had obtained legal advice prior to signing those terms.
The proceedings came before me on 15 February 2007 when I made interim orders.
The children have lived with each of their parents substantially in accordance with those orders since that time.
During the course of this trial I have persistently and consistently encouraged the parties to try and resolve the issues between themselves. I took an unusual step yesterday afternoon in indicating what my preliminary thoughts were in relation to the parenting of these children.
I did that prior to submissions by counsel and I did it in a way that I was not bound by those preliminary views, and I made that clear to counsel and the parties.
I took that step because these are proceedings under division 12A of Part VII of the act. Section 69 ZN of the Family Law Act provides principles which the court must apply in determining children's issues.
The first principle is that the court is to consider the needs of the children concerned and the impact that the conduct of the proceedings may have on the children. The second, or the fourth principle, is that proceedings are, as far as possible, to be conducted in a way that will promote cooperative child-focused parenting by the parties of the children.
In this case it was necessary for me to make findings of abuse, perhaps; violence, perhaps; intimidation, perhaps; the credit of each of the parties. My concern which I articulated through the course of the trial was that whatever finding I made in relation to those facts would impact significantly upon the parties. They would have to live with it and more importantly as would the children.
Accordingly I took the steps that I did so that these proceedings which have been a feature no doubt in the lives of these children for the last almost two years would not continue to be an impact on their lives in terms of any decisions I made into the future.
I also took those steps in an effort to promote the hearing to urge upon the parties cooperative child-focused parenting by these parties. Both the parties give evidence which I accept as truthful that they dearly love these children and they want to be part of their lives.
However, in their love they are pulling these children apart. They are damaging them. There is no doubt on that. By taking the steps that they have taken this morning to settle these proceedings and not have a decision imposed upon them, I hope it will be a first step to mitigating the conflict that exists between them and to allow these children to have the benefit of both of their parents in years to come, absent from constant litigation.
I took the unusual step to give these reasons in this matter and express those reasons because: (1) to acknowledge the impact that these proceedings have on the children, and (2), for the benefit of the legal profession and community that there is a different way we deal with children's matters now, and that judges will be far more interactive in terms of proceedings so that decisions are made and must continue to be made in the best interests of the children, but they can be made in a way which causes as little damage to the children as possible.

I certify that the preceding 26 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:

Date: 20 February 2008

[2008] FamCA 146

20 February 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Costs

Discovery

Remedies