Harrow and Eton

[2007] FamCA 812

FAMILY COURT OF AUSTRALIA

HARROW & ETON [2007] FamCA 812

FAMILY LAW - CHILDREN – Live with mother – Spend time with father

APPLICANT: MS HARROW

RESPONDENT: MR ETON

FILE NUMBER: BRF 1124 of 2005

DATE DELIVERED: 30 July 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 30 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page of Senior Counsel

SOLICITOR FOR THE APPLICANT: The Applicant instructed counsel directly

SOLICITOR FOR THE RESPONDENT:	There was no appearance by or on behalf of the Respondent
INDEPENDENT CHILDREN'S LAWYER	Mr Burridge of Counsel instructed by Legal Aid Queensland

Orders

1. That all previous orders be discharged.

2. That the child J born in March 2002 live with the Mother.

3. That the father spend time with the child:-

   School Holidays

   Upon the Father giving, not less than 30 days written notice to the mother to her email or postal address,  of his intention to do so,  that the Father spend time with the child during school holiday

   a)For all of the Easter 2009 school holidays, and alternate years thereafter,  from 12 noon Easter Thursday to 12 noon on the Saturday immediately prior to school resuming, ; with changeover to occur at a regional South Queensland contact centre; and

   b)For all of the June/July school holidays in 2008 and each alternate year thereafter and each and the first half of the holidays period in 2009 and each alternate years thereafter; ; with changeover to occur at a regional South Queensland contact centre and

   c)For all of the September/October school holidays in 2009 and each alternate year thereafter and each and the first half of the holidays period in 2008 and each alternate years thereafter; with changeover to occur at a regional South Queensland contact centre, and

   d)For one half of the Christmas school holidays, being the first half in 2007 and each alternate year thereafter and the second half in 2008 and each alternate year thereafter, ; with changeover to occur at a regional South Queensland contact centre.

   Weekends during school Term

   e)During school term, on the 2^nd and 4^th weekend of each month, from after school Friday to before school Monday, with such time to occur in a regional South Queensland town, with changeover at the child’s school, provided that the Father giving the Mother 1weeks written notice to by email or by post, of his intention to spend time with the child and in the event written notice is not received time for that weekend for which notice is not received is suspended.

   Telephone Communication

   f)That the child be at liberty to communicate with the Father by telephone, at all reasonable times, Australia time, with such calls to be initiated by the Father.

4. That school holiday time commence at 12 noon on Saturday and conclude at 12 noon on a Sunday as follows:-

   a)if the Father is spending time with the child for the first half or for all the holidays, then time commences on the first Saturday following the end of the school term; and

   b)if the Father is spending time with the child for the first half of the holidays then time concludes on the Sunday half way through the holiday period.

5. That the Father be at liberty to attend the child’s school (S School in regional South Queensland) during any time the child is in attendance, in addition to handover arrangements detailed in paragraph 3(g) above, provided he give the  Mother 7 days written notice of his intention to do so and subject to any school regulation.

6. That the Father be at liberty to attend the child’s extra curricular activities provided he give the Mother 7 days written notice of his intention to do so and subject to any regulation of the activity facilitator/convenor.

7. That unless otherwise specifically provided in these Orders that handover occur at a regional South Queensland city contact centre, unless an alternate venue within this area can be agreed between the parties.

8. That the Mother be at liberty to call the child:-

   a)during any school holiday period  the child is with the Father, each Wednesday between 6pm and 6.30pm, and that the father allow the child privacy for the call; and

   b)in additional to school holiday calls provided for in subparagraph 5a above, that the Mother be permitted to call the child during time she is spending time with the father, on special days and in particular Easter Sunday, Christmas Day, Mother’s Day, the Child’s birthday, between 6pm and 6.30pm, and that the father allow the child privacy for the call.

9. That the child be at liberty to telephone the mother at all reasonable times the child is spending school holiday time with the father, and that the father will facilitate the child in making the call.

10. That this Order authorises the Mother and Father to liaise with the child’s school and medical practitioners, and allied health professionals to obtain information about the child, from those organisations  including school reports, school newsletters, school photographs and medical reports or results ( of the child), at the expense (if any) of the requesting party.

11. That the Mother and Father keep each other advised of their address and telephone number and advise within 48 hours of any change to those details.

12. That the Mother and Father advise each other as soon as practicable of any medical emergency involving the child,  requiring medical treatment by a hospital or medical practitioner whilst the child is in their care, including the name of the treating doctor and hospital and if known the contact number.

13. That the Mother and Father keep each other advised in writing of the medical practitioners and allied health professionals the child attends, and advise within 7 days of any change to those details.

14. That these orders operate as an authority for the Mother and Father to obtain information, results and reports from the children’s school, day care,  medical practitioners, allied health professionals and other professionals who treat, consult with or interview children, at the expense, if any, of the party requesting the information, result or report about the children.

15. That neither the Mother and Father not criticise, denigrate demean or belittle or ridicule each other or any member of the parents family or household in the presence of  or hearing of the child and will immediately remove the child from the presence of persons who are doing so.

14. That neither the Mother and Father discuss with, or in the presence of, or hearing of, the child any matter which is the subject of, or relates to proceedings between the parties allegations raised in the proceedings and will immediately remove the child from the presence of persons who are doing so.

15. That only the Mother and Father be involved in any handover and any other adults associated with either the Mother or Father remain at least 200 metres away from the changeover.

16. That the belongings with the child at the commencement of time with the father be returned with the child at the conclusion of time with the father.

17. That in the event either the Mother or Father seek to vary these orders or a dispute arises as to their effect, that the parents will attend Dispute Resolution with a Family Dispute Resolution Practitioner.

18. In choosing a Dispute Resolution Centre, the parties will choose first a Family Dispute Resolution Centre if any in the regional South Queensland city and if none or unable to assist, that the mother choose and advise the father of a Family Dispute Resolution Practitioner within 7 days of her receipt of written notice from the Father nominating 3 Family Dispute Resolution Practitioners in the regional South Queensland city.

19. That the parents attend at Dispute Resolution as and when directed or requested by the Dispute Resolution Practitioner and share equally the costs of Dispute Resolution.

20. That all outstanding Applications including any Application for Contravention be dismissed.

21. That pursuant to section 118 any further Application under the Family Law Act 1975 proceed in the first instance by way of ex parte Application and supporting affidavit.

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

NOTATION

1. It is intended that the child continue to attend S School in regional South Queensland.

2. It is intended that the child be raised in the Christian Faith.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bell delivered this day will for all publication and reporting purposes be referred to as Harrow and Eton

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1124 of 2005

MS HARROW

Applicant

And

MR ETON

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of the mother for various orders in relation to a child of her relationship with the respondent father.  The child, being a daughter, was born in March 2002.

2. The child has lived with the mother since separation from the father and is continuing to live with her.  The father has enjoyed spending time with his child in accordance with the order on occasions.

3. There has been a great deal of difficulty in the relationship between the parties in this matter I am informed from the Bar table by Page QC and Burridge of counsel for the independent children's lawyer that there has been 23 appearances before this Court including two trials, one before the Federal Magistrates Court and one before Barry J at the beginning of this year which appears to have been partially aborted by the fact the matter was removed from the LAT system and interim orders were made by Barry J. 

4. The mother filed an amended application on 31 May.  In that she sets out the orders which she seeks and, if I may shorten the matter to a certain extent, such orders have been overcome by a draft put before me by the independent children's lawyer through her counsel, Burridge, which is accepted by the applicant mother as being orders which should properly be made to advance the welfare of the child.

5. I may say in passing, after having read the material put before me by the mother, the attitude of the father, as set out in his letter and his purported affidavit, notwithstanding the fact I have not accepted it for the purposes of evidence in this case, I am surprised she is as generous as she is.  This is not opposed by the children's lawyer and, as a result thereof, I will be making orders in accordance with the draft placed before me.  I must briefly touch upon those matters which are set out in the 73^rd amendment to the Family Law Act in which we have the presumption of equal shared parental responsibility.  I must say that in this case I am more than satisfied, as a result of the attitude of the father towards the Court in which he alleges collusion, as the result of the father at this time residing in England, I am more than satisfied that the father fails to comply with an order of the Court, particularly the order for his filing of an affidavit which he said he did not have sufficient time to do, and generally because of the evidence contained in the mother's material that it would not be in the best interests of the child for her to be shared, as the politicians believe is proper generally - prima facie, rather, I should say.  Consequently I am not bound, as far as I am concerned, by the presumption.

6. Why should the child have contact with her father?  Well, it has been recognised by the politicians who amended the Act that the children or child, in this case, has the rights and parents only have the duties and, regrettably, of course the politicians fail to recognise that this Court, since 1975, has put the children's welfare first, has put the children's rights first and has always considered that parents have duties and no rights.

7. The child has a right to know her father and, notwithstanding the matters which concern me in relation to his general attitude towards, not only the mother, but it also appears to be the child minding centres and contact centres, the mother has conceded that it is in the best interests of the child that she have contact with the father.  I take into consideration those matters that are particularised in section 60CC but it appears to me that those matters have been overcome by the mother quite honestly conceding that the child deserves and requires a relationship with her father and that I do not intend, as perhaps has been suggested in recent cases that this maybe a lack of adequate reasons, to emphasise those matters which are set out section 60CC save to say that the father's lack of interest in appearing here today concerns me particularly and I believe that that is sufficient for me to make the orders as sought by the mother and modified by the independent children's lawyer.  Consequently I have no hesitation in ordering in accordance with the draft that is contained in the independent children's lawyer's draft.

8. One further matter which is of grave concern in this case, is a question of whether, in effect, a declaration should be made pursuant to the provisions of section 118. As I have said already, I have been informed from the Bar table that there have been 23 appearances and/or applications before this Court, that there are still at least two contravention applications in existence, that they have not been prosecuted by the father and consequently I will be dismissing them. I understand they have been returned today.

   RECORDED  :  NOT TRANSCRIBED

9. It has been quite properly pointed out to me by Burridge that I could have fallen into error in that I have overlooked proposed O 21 when I am dealing with this section 118 application. Thank goodness it is in there because I am more than satisfied that both parties should be precluded from coming before this Court. The attitude of both parties in prosecuting cases which have taken up an enormous amount of time in this Court are, in themselves, I would consider, vexatious.

10. The last time that there was any Court appearance was in February, albeit it only ended up in an interim order.  Consequently, I will make that order as set out in the proposed O 21.  I was considering keeping the independent children's lawyer in but in the circumstances, as was pointed out by Burridge, it would be unnecessary because the information would have to come from one or other of the parties to enable the independent children's lawyer to move into gear and we should short circuit that and come directly to the Court with the complaints of one or other of the parties.

    ORDER DELIVERED

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  13 August 2007