Harmey and Rutkowski

[2019] FamCA 1044

FAMILY COURT OF AUSTRALIA

HARMEY & RUTKOWSKI [2019] FamCA 1044

FAMILY LAW – CHILDREN – Final orders – where final parenting orders are made by consent – where the Independent Children’s Lawyer consents to the orders, save and except for the commencement of overnight time – where the orders made provide for the child to spend overnight time – where the parties have reached an agreement that is in the best interests of the subject child.

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Mr Harmey

RESPONDENT: Ms Rutkowski

INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

FILE NUMBER: MLC 2909 of 2016

DATE DELIVERED: 4 December 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 4 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McLeod

SOLICITOR FOR THE APPLICANT: Cinque Oakley Bryant Lawyers

COUNSEL FOR THE RESPONDENT: Ms Elleray

SOLICITOR FOR THE RESPONDENT: Nevett Wilkinson Frawley

COUNSEL FOR INDEPENDENT CHILDRENS LAWYER Mr Lethlean

SOLICITOR FOR INDEPENDENT CHILDRENS LAWYER Lampe Family Lawyers

Orders

IT IS ORDERED BY CONSENT AS BETWEEN THE PARTIES THAT

1.The parents have equal shared parental responsibility for the child X born … 2009 (“the child”) save for decisions on matters of education, cultural and medical issues for which the Mother shall have the final say. 

2.The child lives with the Mother.

3.The child spends time with the Father as follows:-

a)    Each alternate weekend from the conclusion of school Friday (or 3:30pm if a non-school day) until 7pm on Saturday commencing Friday 6 December 2019;

b)   Each alternate weekend from the conclusion of school (or 3:30pm if a non-school day) until 7pm on Sunday commencing June 2020;

c)    Each Wednesday from the conclusion of school until 7pm;

d)   In 2019 from 3pm 25 December until 3pm 26 December and each alternate year thereafter;

e)    In 2020 from 3pm 24 December 2019 until 3pm 25 December 2019 and each alternate year thereafter;

f)    For not less than 3 hours on the child’s birthday and the Father’s birthday in the event the child is not otherwise in his care on that day from 3:30pm until 6:30pm;

g)   For not less that 8 hours on Father’s Day in the event the child is not otherwise in his care that day from 11am until 7pm;

h)   At further and other times as may be agreed.

4.The child’s time with the Father shall be suspended:

a)    From 5pm the Saturday of Mother’s Day weekend;

b)   From 3:30pm to 6:30pm on Y’s (…) and Z’s (…) and W’s (…) birthdays.

c)    For a period of up to 3 weeks on dates nominated by the Mother once per year for the purpose of a holiday with the child.

5.Changeovers not occurring to and from school shall occur at Horsham Police Station. 

6.The Father shall be in substantial attendance for all times the child spends with him pursuant to these Orders, and shall be fed an evening meal prior to 7pm returns.  

7.The Father attend for and undergo a supervised urine test within 24 hours of a written request (by email or text) for the same from the Mother, such request not to occur more frequently than once each calendar month, until 30 December 2020;

8.The parties each, by themselves and their agents, be hereby restrained by injunction from denigrating the other or the other’s family members to or in the presence or hearing of the child.

9.The parents shall attend a Victoria Legal Aid Family Dispute Resolution Service mediation in December 2020 with a view to reviewing time arrangements between the child and the Father.

10.All previous undertakings by the parties to the Court are hereby discharged.

IT IS FURTHER ORDERED

11.That all extant applications be dismissed and removed from the list of cases awaiting hearing.

12.That the appointment of the Independent Children’s Lawyer be discharged.

13.Pursuant to ss.65DA(2) and 62B 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 are set out in Annexure A and these particulars are included in these orders.

14.Certify for Counsel.

IT IS DIRECTED THAT

15.All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same.

AND THE COURT NOTES THAT

A)The Independent Children’s Lawyer consents to the orders, save and except for the commencement of overnight time.

B)Nothing in these Orders prohibits the Father from seeking to volunteer at the child’s school.

C)The FDRS conference referred to herein is intended to review the progress of these Orders.

D)In the event the Father wishes to take the child to City B or interstate he shall arrange for another person to drive the motor vehicle.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harmey & Rutkowski has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2909 of 2016

MR HARMEY

Applicant

And

MS RUTKOWSKI

Respondent

REASONS FOR JUDGMENT

1.In this matter I have read the material.  The parties have spent some time negotiating today and they have reached an agreement with respect to the arrangements for the care of the child, X, born in 2009.

2.Those arrangements include a move to the child spending overnight time with the father.  That is in circumstances where the child has now been spending unsupervised time after a lengthy period of supervised time with the father since May 2019.  It is agreed by the parties and the Independent Children’s Lawyer (“ICL”) that no issues have arisen that would cause either the mother or the ICL to say that that there should be a return to supervised time. In fact, the mother’s case was to continue unsupervised time. 

3.Although the parties consent to these orders, the ICL does not consent to the introduction of overnight time. The ICL does not appear to have a clear position in relation to when overnight time should commence or if it should commence at all. 

4.The concerns of the ICL are predicated primarily on the matters raised by the family report writer in the most recent report. Those concerns are raised in the context of a long history of allegations made in this case in relation to family violence, drug use, attempts to influence the child and although the evidence has yet to be tested, I note that the family report writer, Ms C, says at paragraph 107 of her report as follows:

…Mr Harmey proposal is for X to live primarily with him and in the alternative to spend equal time with each parent on a week about basis.  It is likely that X loves her father and wants to spend time with him on a regular basis.  However, she is extremely vulnerable given her experiences and there are a number of identified and ongoing concerns regarding Mr Harmey, including his mental health, his reported dependency on prescription medication, and the possibility, if not the likelihood, that he actively seeks to undermine and destabilise X’s important relationship with her mother and her siblings.  These combined concerns pose a risk to X’s emotional and psychological safety.  And his proposal cannot be supported.  In addition, X’s wishes and her right to continue to enjoy spending time with her father will need to be balanced against her rights to be protected from physical and emotional harm.

5.Before these proceedings commenced, the child was spending substantial time with the father.  He then suffered a psychotic episode which thereafter led to these protracted proceedings.  It is common ground that the father has not had any further episodes of that kind.  That does not mean that there are no concerns, or that Ms C’s concerns are not valid.  However, I am mindful that Ms C expressed her concerns in the context of the father’s proposal the child live primarily with him and in the alternative, to spend equal time with each parent on a week about basis.  That is not what these orders provide and the child will continue to live primarily with the mother.

6.Significantly in my view, the child has been spending unsupervised time with the father.  Ms C recommends, subject to there being no findings of an unacceptable risk that the child continue to spend unsupervised day time with the father.  And the ICL would consent to an order for unsupervised day time with the father.  Counsel for the ICL do not in my view really identify in any real sense why the overnight time would present an additional risk for the child in the context of the evidence, and particularly the report of Ms C.

7.In all of the circumstances, it seems to me there is a great deal of benefit for this child and the parties, to bring some finality to this matter, to move on with their lives.  They are represented by experienced counsel.  They would appear to have considered their respective positions and received advice from their counsel.  So in all the circumstances I propose to make the orders that the parties seek by consent and will note that the ICL opposes the move to overnight time.

8.I must have regard to the matters in s 60CC of the Family Law Act 1975 (Cth). The child’s welfare is the paramount consideration. The need to protect the child from psychological abuse or physical risk takes priority. There is, in this case, no doubt that this child has been exposed to family violence and there are allegations made by each of the parties as against each other. But in the end, these parties have reached an agreement they believe will promote their child’s best interests and I am satisfied that I should make the orders.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 4 December 2019.

Associate: 

Date:  14 February 2020