HANANIA & HANANIA

[2015] FamCA 344

FAMILY COURT OF AUSTRALIA

HANANIA & HANANIA [2015] FamCA 344

FAMILY LAW – PARENTING – where parties agree to orders to finalise long running proceedings – where the orders proposed by the parties differ to the recommendations made in the family report – where the independent children’s lawyer neither supports or opposes the orders sought – where the orders proposed reflect the children’s ongoing primary residence with the mother – orders made as sought by the parties.

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Hanania

RESPONDENT: Mr Hanania

INDEPENDENT CHILDREN’S LAWYER: Ms Truong

FILE NUMBER: PAC 1682 of 2010

DATE DELIVERED: 21 April 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 21 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Watts McCray Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Watts McCray Solicitors Legal Aid NSW Bankstown

Orders

BY CONSENT OF THE APPLICANT AND RESPONDENT IT IS ORDERED THAT:

1. That the parties have equal shared parental responsibility for the children B born … 2000 ("B") and C born … 2003 ("C") (collectively referred to as "the children").

2. That the children shall live with the Father as follows:

   2.1Each alternate weekend from the conclusion of school Friday until the commencement of school on Monday or 9am in the event of a non-school day commencing, Friday, 1 May 2015.

   2.2Each Wednesday from after school until 7pm.

   2.3From 9:00am to 5:00pm on Father's Day each year in the event the children are not otherwise living with the Father pursuant to these Orders;

   2.4On the children's birthdays as follows:

   2.4.1If the children's birthday falls on a weekend when they are not otherwise living with the Father pursuant to these Orders, they shall spend time with the Father as agreed between the parties, and in the absence of agreement from 1:00pm to 6:00pm on the day of their birthday;

   2.4.2If the children's birthday falls on a week day when they are not otherwise living with the Father pursuant to these Orders, they shall spend time with the Father as agreed between the parties, and in the absence of agreement from 6:45pm to 8:30pm on the day of their birthday.

   2.5On the Father's birthday as agreed between the parties and failing agreement:

   2.5.1If the Father's birthday falls on a weekend when the children are not otherwise living with the Father, they shall live with him from 1:00pm to 6:00pm on the day of the Father's birthday;

   2.5.2If the Father's birthday falls on a week day when the children are not scheduled to live with the Father, then the children shall spend time with the Father from 6:45pm until 8:30pm.

3. That the children shall live with the Mother at all other times.

4. The Father's time with B and C pursuant to Order 2, shall be suspended as follows:

   4.1From 9:00am to 5:00pm on Mother's Day each year;

   4.2On B and C's birthdays as follows:

   4.2.1If the children's birthday falls on a weekend when they are not otherwise living with the Mother pursuant to these Orders, they shall spend time with the Mother as agreed between the parties, and in the absence of agreement from 1:00pm to 6:00pm on the day of their birthday;

   4.2.2If the children's birthday falls on a week day when they are not otherwise living with the Mother pursuant to these Orders, they shall spend time with the Mother as agreed between the parties, and in the absence of agreement from 6:45pm to 8:30pm on the day of their birthday;

   4.3On the Mother's birthday as agreed between the parties and failing agreement:

   4.3.1If the Mother's birthday falls on a weekend when the children are not otherwise living with the Mother, they shall live with her from 1:00pm to 6:00pm on the day of the Mother's birthday;

   4.3.2If the Mother's birthday falls on a week day when the children are not scheduled to live with the Mother, then the children shall spend time with the Mother, from 6:45pm until 8:30pm.

5. That for the purpose of changeover the Father shall collect the children from school or from the Mother's residence in the event on a non-school day at the commencement of his time and the Mother shall collect the children from the Father at the Father's usual place of residence or school at the conclusion of the Father's time.

6. That each party inform the other, in writing, of any change to his/her residential address or contact telephone number, not less than seven (7) days prior to such change occurring.

7. Both parties shall sign all documents and do such things to authorise the principals, directors and all staff of any school that the children may from time to time attend, to supply to both parties all school reports, school photographs, school counsellor's notes, memos, school newsletters and any other information in relation to the children as requested, and the requesting parent shall do all things necessary and meet all expenses in relation to obtaining same.

8. That each party notify the other as soon as reasonably practicable of any accident or emergency involving the children, which involves medical treatment or hospitalisation whilst the children are in their respective care.

9. Both parties shall sign all documents and do such things as necessary to authorise and direct any medical, health, developmental, dental, behavioural and counselling professionals treating or otherwise involved with the children, to communicate with and provide information and copies of documents to both parties.

10. That both parties shall sign all documents and do such things necessary to arrange for the children to attend counselling, with a counsellor as agreed between the parties.

11. That neither party shall denigrate the other party or members of the other party’s family to or in the presence or hearing of the children.

12. That all outstanding applications are dismissed.

BY CONSENT IT IS FURTHER ORDERED THAT:

1. The Father shall within seven (7) days of the date of these Orders pay the balance of his half share of the Independent Children’s Lawyer’s costs in the sum of $679.46.

2. The Mother shall by close of business Friday 01 May 2015 pay $1,164.73 towards her share of the Independent Children’s Lawyer’s costs.

NOTATIONS:

A.The Father had already paid $1,650.00 of his share of the Independent Children’s Lawyer’s costs.

B.The Mother is currently in casual employment.

IT IS FURTHER ORDERED THAT:

1. The appointment of the Independent Children’s Lawyer be discharged as and from the conclusion of the Independent Children’s Lawyer’s post settlement conference with the children.

2. A transcript of the Court’s short observations be taken out and placed with the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hanania & Hanania 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 PARRAMATTA

FILE NUMBER:

Ms Hanania

Applicant

And

Mr Hanania

Respondent

REASONS FOR JUDGMENT

1. The mother and father seek parenting orders by consent. They are not opposed nor supported by the independent children’s lawyer. The proposed orders differ from the recommendations of the family report writer.

2. The Rule 10.15A documents, signed by each of the parties, are admitted into evidence as Exhibit A. The family report, dated 7 February 2012, is admitted as Exhibit B and the family report, dated 19 February 2015, as exhibit C. 

3. These have been protracted parenting proceedings conducted by the parties over the last five years and initially they related to the four children of the relationship but, by dint of the effluxion of time only two of the children are now under the age of 18 years.  Those children are B, born in 2000 aged 14, and C, born in 2003 aged 11. 

4. The arrangements foreshadowed in the proposed orders are somewhat different to the recommendations of the family report writer but, to some extent reflect the children’s ongoing primary residence with the mother which has been something like an eight/six split more recently. The proposed orders provide for the children to spend alternate weekends with the father from Friday to Monday, Wednesday evenings and special days. Otherwise the children shall live with the mother. Both parents are to have equal shared parental responsibility. 

5. The updated family report concludes in the following way:

   42.      Mr Hanania claimed that he would be willing to take on the children’s full time care if the Court determined that this was in their best interests, however, his presentation and the nature of his proposals indicated some ambivalence about this. It could not be determined if this was because he did not actually want the responsibility for such a high level of care, (particularly for C, who would still require some supervision) or if he did not want to offend Ms Hanania. It is possible that it is a combination of both of these factors.

   43.      It was assessed as likely that both boys would eventually unilaterally move to live with Mr Hanania, as D had already done. In addition, it may preserve the children’s relationship with Ms Hanania if they did not live with her. Given this, it is recommended that B and C live with Mr Hanania, unless the Court was to find that Mr Hanania was unwilling to provide full time care to them. It is recommended that the boys spend four nights per fortnight with Ms Hanania. It appeared that they will also see her at church and at Sunday lunch so they will not go a week without seeing her.

   RECOMMENDATIONS

   ·Shared parental responsibility

   ·That B and C live with Mr Hanania and spend four nights per fortnight in a block with Ms Hanania

   ·That the Court determine a suitable arrangement for the children’s tutoring.

6. The father however agrees with the orders proposed in the Minute of Orders.

7. The independent children's lawyer has some reservations about the parties’ proposed arrangements in relation to the children and expresses no view.  She neither supports nor opposes the orders agreed to by the parents. 

8. The important thing in this matter is that the parties to these proceedings are the children’s parents and, of course, they are at liberty to make arrangements as they see fit in relation to the children’s residential arrangements provided that those arrangements, in all the circumstances, are reasonable and in the best interests of the children. 

9. The considerations necessary in relation to parenting (Goode & Goode (2006) FLC 93-286) need not be repeated in the context of these short observations but, overall, the Court is satisfied that the orders should be made in the interests of the children, and also to end this long running litigation on a final basis.

10. Both parties are conscious that the two older children of the relationship have, as it were, settled their relationship with each of the parents and live in differing arrangements that suits them.  As the two subject children get older, their wishes as to where they will reside will need to be considered by each of the parents.

11. In all of the circumstances the court is satisfied that the orders should be made in the best interests of the children. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 21 April 2015.

Associate: 

Date:  21 April 2015