HAWKINS & SOPHORA

Case •

[2014] FamCA 684

•

18 August 2014

FAMILY COURT OF AUSTRALIA

HAWKINS & SOPHORA [2014] FamCA 684
FAMILY LAW – CHILDREN – With whom the child should live and spend time – Where the mother has a history of withholding the child from the father – Where there are allegations by the father of alienation by the mother – Where the parties consented to the making of interim rather than final parenting orders
Family Law Act 1975 (Cth)
APPLICANT: Ms Hawkins
RESPONDENT: Mr Sophora
INDEPENDENT CHILDREN’S LAWYER: Ms Geysen
FILE NUMBER: BRC 6473 of 2012
DATE DELIVERED: 18 August 2014
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Kent J
HEARING DATE: 18 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Anglin, Salvos Legal Humanitarian, appearing as a Friend of the Court
COUNSEL FOR THE RESPONDENT: Mr C O’Meara
SOLICITOR FOR THE RESPONDENT: Neilson Stanton & Parkinson

Orders

It is ordered by consent until further order that:

  1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

It is ordered that:

  1. The proceedings be adjourned for mention before the Registrar at 4.00 pm on 25 February 2015 at the Family Court, Brisbane Registry.

  1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

It is directed that:

  1. The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

  1. That all previous Orders made by this Honourable Court be discharged.

Residence

  1. That the child, B (the Child) (DOB: …/2003) live with the Mother.

Parental Responsibility

  1. That the Mother and Father have equal shared parental responsibility for the long term care, welfare and development of the Child.

  2. That prior to the exercise of their parental responsibility the parents shall consult with each other regarding matters including but not limited to:-

    a.The child’s health (excluding care decisions regarding minor childhood illnesses and emergency medical decisions)

    b.The child’s education

    c.The child’s religion

    d.Any proposal to relocate the residence of the child that makes it practically more difficult for the father to spend time with the child pursuant to these Orders.

  3. That the parents are to consult with each other about decisions to be made in the exercise of their parental responsibility as follows:-

    a.they shall inform each other by text message about the decision to be made;

    b.They shall consult with each other on terms that they agree and if no agreement by text message with the parents to respond to each other within 2 days;

    c.         They shall make a genuine effort to come to a joint decision.

    d.In the event that they cannot agree on a joint decision they shall undertake the dispute resolution process in Order 30 herein.

  4. That notwithstanding the provisions of Order 3 herein:-

    a.The father shall be responsible for the daily care, welfare and development of the child when he is spending time with him;

    b.The mother shall be responsible for the daily care, welfare and development of the child when he is living with her.

Time with the parents

  1. That the Child shall spend time with the Father at all such reasonable times as may be mutually agreed upon by the Parents. However, failing agreement, the Child shall spend time with the Father as follows:

    a.Every second weekend from Friday after school to Sunday 5.00pm commencing 22 August 2014;

    b.If Monday is a public holiday, then the Child is at liberty to spend time with the Father until 5.00pm on that day;

    c.Mother’s Day with the Mother from 9.00am to 5.00pm;

    d.Father’s Day with the Father from 9.00am to 5.00pm;

    e.The first half of all school holidays in even numbered years and the second half of the school holidays in odd numbered years;

    f.If the Child’s birthday falls on a weekday, then the Father shall spend time with the Child on the Friday of the same week as the Child’s birthday from after school to Saturday 5.00pm

    g.If the Child’s birthday falls on a weekend other than the weekend the Child spends with the Father, then the child shall spend time with the Father from 11.00am to 5.00pm on the Child’s birthday;

    h.The holiday period shall be deemed to start on the first Saturday of the holiday period and deemed to end on the last Saturday of the holiday period.

Makeup time

  1. That the father shall have the following time with the Child as makeup time:

    a.         All of September/October 2014 school holidays;

    b.         The first 4 weeks of the Christmas 2014 school holidays; and

    c.         The first 10 days of the June/July 2015 school holidays.

Communication

  1. That for the purpose of communication between the parents in respect of the Child, the parents shall communicate by text message. 

  2. That all communication between the parents shall be in writing including text message, except in an emergency.

Telephone communication

  1. That the Child is at liberty to telephone the Father at any time he wishes and the Father shall telephone the Child at any time before 8.30pm during the school weekdays and anytime from 9.00am to 9.00pm on the weekend and/or holidays and further, at least each Wednesday between 7.00pm and 8.00pm with the Father to telephone the Child when not with the Father on a Wednesday.

  2. That the parent with whom the Child is living at any time shall facilitate any request by the Child to telephone the other parent.

  3. The Child shall be given privacy when communicating by telephone with the parents.

  4. That the Father and Mother shall supply their home addresses and contact telephone numbers to the other parent. If either parent’s details are changed then that parent is to notify the other parent within 7 days of the change of those details. All other arrangements in respect of changeovers shall remain in place.

Medical matters

  1. The Father and Mother shall furnish to the other parent, all contact details of all treating health professionals and shall keep the other parent informed of any changes to those contact details.

  2. That the parties will inform each other as soon as reasonably possible of any serious medical condition, significant health issue or illness suffered by the Child.

  3. This order constitutes authority for either parent to communicate with the Child’s medical or other health practitioners and to request from them such information relating to the Child’s health and or treatment as that parent may desire and at that parent’s cost.

  4. Each parent shall follow the directions and recommendations of any treating health professional in respect of the Child while the Child is in that parent’s care.

Travel

  1. Should either parent wish to travel with the Child overseas, then that parent is to give clear notice of the intended travel at least 28 days prior to the intended travel. Each parent is to provide to the other parent with:

    a.the details of the intended travel, including dates of travel, locations and details of where the Child will be staying; and

    b.contact telephone numbers for any places where the Child will be staying (if available).

  2. The other parent shall not unreasonably withhold consent to such proposed travel and shall advise whether or not consent is given within 7 days of receiving the proposal.

  3. Neither parent shall travel overseas with the Child without the other parent’s prior written consent in accordance with clause 20, and each party shall provide copies of all relevant air tickets not less than 14 days prior to that travel.

Non-denigration

  1. Neither parent shall denigrate the other in the presence of nor hearing of the Child, and each parent shall use his or her best endeavours to ensure that other persons do not denigrate the other parent in the presence nor hearing of the Child.

Authorities

  1. This order constitutes an ongoing authority to the Child’s school(s) and extracurricular organisations to provide to each of the parents, copies of school reports and other documents or correspondence mailed to any other parent of a Child attending that school or organisation and will include all formal notifications relating to the Child concerning disciplinary matters or action and or changes or decisions relating to the Child’s academic progress.

  2. This order constitutes an ongoing authority to the Child’s school and extracurricular organisations for either of the parents to attend at the school or organisation if requested or invited to attend to discuss the Child’s progress at any time including but not limited to parent/teacher interviews/evenings.

Other matters

  1. That the parents not use corporal punishment to discipline the Child.

  2. The Father shall be recorded on the Child’s birth certificate as the Child’s father and both parties shall take all necessary steps to ensure that this is recorded and shall do so within 28 days. The Father shall pay the registration fee.

  3. That neither parent shall discuss adult issues with the Child (which includes these proceedings).

Changeover
Collection

  1. Changeover shall occur after school at the Child’s school when the Child is attending school. On non-school days or where the Child is not attending school, changeover shall occur, unless agreed in writing, at 9.00am at the commencement of time with the father, at McDonald’s on the corner of C Street, Suburb D.

Drop off

  1. Drop off shall occur at McDonalds on the corner of C Street, Suburb D.

Dispute Resolution

  1. That the process to be used for resolving future disputes about the child or the terms or operation of these Orders shall be as follows:

    a.The parties shall consult with the Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child.

    b.They shall pay the costs of the Family Dispute Resolution Practitioner equally.

    c.In the event that they are unable to, for any reason, to have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the parent seeking to mediate (requesting parent) shall nominate three (3) practitioners and will advise in writing details of their fees, experience and availability.

    d.The other parent shall choose one of the listed practitioners within seven (7) days of receipt of the list.

    e.If the other parent fails to choose then the requesting parent may choose.

  2. The Independent Children’s Lawyer provide copies of the Family Reports by Ms E dated 6 February 2013 and 19 July 2014 to Mr F, Psychologist or such other counsellor that the mother attends.

  3. The mother shall continue to attend counselling with Mr F, Psychologist or such other counsellor as recommended by her general practitioner, and complete a parenting orders program.

NOTATION

a.The parties shall take into account, any recommendation by G School or Education Queensland concerning the Child’s secondary schooling.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hawkins & Sophora 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 BRISBANE

FILE NUMBER: BRC 6473 of 2012

Ms Hawkins

Applicant

And

Mr Sophora

Respondent

EX TEMPORE REASONS FOR JUDGMENT

  1. B, born in 2003, who is now 11 years of age, is the subject of these parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

  2. The parties originally seeking competing parenting orders were the applicant, Ms Hawkins (“the mother”); the respondent, Mr Sophora (“the father”), and the Independent Children’s Lawyer (“the ICL”) appointed pursuant to s 68L of the Act to independently represent the child’s interests in the proceedings.

  3. The proceedings have something of a long history in that the parties separated on a final basis in June 2012 and proceedings commenced not long after that. 

  4. On 19 July 2012, the proceedings were commenced by the mother in the then Federal Magistrates Court, which was subsequently transferred to this Court. 

  5. Following a hearing on an ex parte basis on 23 July 2012, Federal Magistrate Coates (as his Honour then was) made orders and delivered short reasons for a recovery order to be issued to return the child to the mother’s care and for the appointment of an ICL; and requested the intervention of the Department of Communities, Child Safety and Disability Services.

  6. A series of subsequent orders by Federal Magistrate Coates led to these proceedings being transferred to this Court in circumstances where there were allegations raised of serious child protection issues concerning the child. 

  7. The proceedings have been the subject of expert intervention in the sense of Professor H, psychiatrist, undertaking psychiatric assessments and family reports being prepared by an experienced family report writer, Ms E.  The most recent of her reports became available shortly before the trial of these proceedings was to commence, and on the basis of the late receipt of that report and for the reasons I delivered on that day, the trial of the proceedings was adjourned to commence to today.

  8. In the result, the parties were, during the course of today, able to reach agreement on the form of consent orders to be made on an interim basis, save and except for one matter which, ultimately, they were likewise able to reach consent upon, albeit with some gentle persuasion by the Court on that aspect. 

  9. The parties and the ICL propose that the orders now to be made be made on an interim rather than final basis.  That is said to be consistent with the recent expert report of Ms E concerning the central issues in the case.  Without delving too much into those, it is fair to say, on a reading of Ms E’s report, that the critical thing for the child in terms of his best interests is that there be a cessation of the parental conflict to the extent that the child be permitted to have a relationship with both of his parents. 

  10. Ms E flagged various possibilities with respect to the child, but, in particular, raised the prospect that if his mother did not permit him to have a relationship with his father without her influence in that respect, then the Court might need to seriously consider a change in the child’s residence so that he would live with the father and, indeed, that there be a suspension of all time with the mother for a period to allow for that adjustment to be made.  Plainly enough, that would be a serious change for the child in circumstances where he has been living with the mother, but it would be a change said to be in his best interests on the basis that it would be the means by which the position would be achieved that the child could have a relationship with his father uninfluenced by the mother. 

  11. In circumstances where the parties have been able to reach agreement on consent orders that would see the child remain living primarily with the mother, it would seem that that achieves the best outcome in terms of the child’s best interests if that proposed regime succeeds.  By success, I mean that if the matter returns to Court in the proposed six months hence and things have worked well, it would seem that it would be in the child’s best interest at that time for these interim orders to effectively become final orders. 

  12. Conversely, if it demonstrated that the regime is unsuccessful, then, again, like today, the Court would have to consider the best option for the child, albeit not being the optimum outcome, in terms of a potential move for the child to reside primarily with the father.

  13. I am satisfied, in particular having regard to the contents of Ms E’s most recent report, that the interim orders as proposed by the parties and the ICL ought be made.  I am satisfied that the orders that the parties have been able to reach, ultimately, agreement upon, with the assistance of the ICL, are those which meet the child’s best interests. 

  14. I acknowledge the effort the parties have made to reach this position and as well acknowledge the input of the ICL and her counsel in assisting the parties to this position. 

  15. I would only note that the child has certain diagnoses that make it obvious that the last thing he needs is two warring parents in his best interests.  What the child needs is the united approach of two, albeit very different people, in working towards achieving what is best for him given the challenges that life has already presented to him.  He does not need another challenge from those who should love him most. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 August 2014.

Associate:

Date:  18 August 2014

Key Legal Topics

Areas of Law

  • Family Law

  • Civil Procedure

Legal Concepts

  • Consent

  • Jurisdiction

  • Procedural Fairness

  • Costs

  • Remedies

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