Hendley and Hendley

[2007] FamCA 1567

FAMILY COURT OF AUSTRALIA

HENDLEY & HENDLEY [2007] FamCA 1567

FAMILY LAW – CHILDREN – Shared Parenting – Orders made by consent upon an undertaking being given by the paternal grandmother through counsel for the applicant husband – Approval of the orders sought

Family Law Act 1975 (Cth)

APPLICANT: Mr Hendley

RESPONDENT: Ms Hendley

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 85 of 2007

DATE DELIVERED: 14 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 14 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Martin

SOLICITOR FOR THE APPLICANT: Martin Irwin & Richards

COUNSEL FOR THE RESPONDENT: Ms Bott

SOLICITOR FOR THE RESPONDENT: Cynthia A Toose & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bender

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That all previous parenting orders be discharged.

2. That the parents have equal shared parental responsibility for the child of the marriage … born … April 1995 (“the child”).

3. That the child live with the wife.

4. That the child spend time and communicate with the husband as follows:

   (i)each Saturday for 4 hours to be supervised by the Child Contact Service M Child Contact Service (“the service”) pursuant to the low vigilant supervised visitation process for up to three months;

   (ii)thereafter for 4 hours each Saturday with the first half of the visit to be offsite and supervised by the paternal grandmother or such other person as agreed between the parties and the second half to be at the premises of the service for a period of up to 6 months;

   (iii)thereafter from 10.00am to 5.00pm each Saturday supervised by the paternal grandmother or such other person as agreed between the parties, with the parties changeover to be at the premises of the service utilizing the service’s changeover service;

   (iv)from 3.00pm to 7.00pm each Christmas Day or at such other times as agreed between the parties to be supervised by the paternal grandmother or such other person/s as agreed between the parties;

   (v)from 10.00am to 5.00pm each Father’s Day to be supervised by the paternal grandmother or such other person as agreed between the parties and on the Father’s Day weekend, the time the husband spends with the child shall be suspended on the Saturday;

   (vi)for two hours on the child’s birthday and the husband’s birthday at times to be agreed between the parties to be supervised by the paternal grandmother or such other person as agreed between the parties;

   (vii)by telephone at all reasonable times;

   (viii)as otherwise agreed between the parties.

5. That the parties and the child shall meet with the service to discuss and review the progress of the child’s time with the husband pursuant to orders 4(i), 4(ii) and 4(iii) hereof and shall be guided by the service as to the timing of the transition and progression of the family through the service.

6. That the wife authorize any school the child attends to forward the husband at his expense copies of all school reports, school photograph order forms, notices and newsletters.

7. That each parent notify the other as soon as practicable of any serious illness or accident suffered by the child whilst in their care.

8. That each parent keep the other notified of their residential address and landline and mobile phone numbers and of any change to same within 24 hours of such change.

9. That the Orders shall commence upon the paternal grandmother filing with the Family Court of Australia a signed undertaking in the following terms and providing proof of such filing to the wife’s solicitors:

   *That I will supervise the time that my grand-daughter [the child] spends with my son [the father] and acknowledge that this means I will be present at all times [the child] is with her father and will ensure she is safe.

   *That in the event [the child] becomes distressed or I have concerns as to the father’s mental state I will immediately arrange for [the child] to return to her mother.

10. 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.

11. That pursuant to Order 38 Rule 26 of the Family Law Rules it was reasonable to brief Counsel and solicitor as Counsel.

12. That the order for appointment of the Independent Children’s Order be discharged.

13. That all extant applications be dismissed.

14. That all matters be removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLC 85 of 2007

MR HENDLEY  

Applicant

And

MS HENDLEY  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me in the regional sittings of the Family Court of Australia at Mildura.  Ms Martin appears for the applicant husband, Ms Bott for the respondent wife and Ms Bender for the Independent Children's Lawyer.  I have had presented Minutes of Proposed Final Consent Orders which have been explained to me by Ms Martin, and from which Ms Bott and Ms Bender draw no dissent.  The Independent Children's Lawyer supports the making of these orders, and very strongly so. 

2. Part of the orders is that concerning the role of the paternal grandmother and the filing in the Family Court of a signed undertaking by her in the following terms:

   “1.That I will supervise the time that my grand-daughter, [the child], spends with my son, [the father], and acknowledge that this means I will be present at all times [the child] is with the father and will ensure she is safe. 

   2.That in the event [the child] becomes distressed or I have concerns as to the father's mental state, I will immediately arrange for [the child] to return to her mother.”

3. Normally, and in every case I can recall, these undertakings have been given in court by the person providing the undertaking and having explained to her or him by the Judicial Officer the seriousness of such a course.  However, I am informed by Ms Martin that the paternal grandmother is “somewhere in [North Queensland]” and cannot be contacted by telephone.  I am further informed by Ms Martin that the paternal grandmother is quite prepared to give this undertaking.  Further, that Ms Martin shall explain to the paternal grandmother the importance of giving an undertaking to the court which is in the form of a promise and that in breach of an undertaking, serious consequences may follow.  I accept that situation.

4. In the whole of the circumstances, I should proceed without undue formality under the umbrella of section 97(3) of the Family Law Act1975, and it appears to me appropriate particularly given the good will, the dignity and commonsense with which these orders have been entered into, that I should proceed in the manner that has been ordained before me this day.  I congratulate all parties on having the ability to enter into these very important orders and certainly wish them the best into the future.  They are very good orders in the circumstances and I have no hesitation in approving the orders which I mark Exhibit “A”.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  15 January 2008.