Herman and Herman

[2007] FamCA 1569

FAMILY COURT OF AUSTRALIA

HERMAN & HERMAN [2007] FamCA 1569

FAMILY LAW – CHILDREN – Parents in conflict as to time their daughter was to spend with the other – Husband proposing relocation to Far West New South Wales – Opposed by wife – Proceedings adjusted on basis of a shared care arrangement

Family Law Act 1975 (Cth)

PRL & KMB (2005) FamCA 242

APPLICANT: Mr Herman

RESPONDENT: Ms Herman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6322 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: Mr Dickson

SOLICITOR FOR THE APPLICANT: Cynthia A Toose & Associates

COUNSEL FOR THE RESPONDENT: Mr Melilli

SOLICITOR FOR THE RESPONDENT: Martin Irwin & Richards

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 parties retain equal shared parental responsibility for the child of the marriage … born on the … day of April 2000.

3. That the child live with each party on a week about basis as follows during school term:

   (a)From the conclusion of school Friday 16 November 2007 to the following Friday with the Wife and each alternate week thereafter.

   (b)From the conclusion of school Friday 23 November 2007 to the following Friday with the Husband and each alternate week thereafter.

4. That the child reside with each party for half of all school term holidays and long summer vacations at times to be agreed and in default of agreement, the first half with the Wife in even numbered years and the second half with the Wife in odd numbered years and second half with the Husband in even numbered years and first half with the Husband in odd numbered years.

5. The changeover of residence during school terms shall take place at the child’s school.

6. That changeover other than at the child’s school be effected at the home of each party, the “live with” parent to deliver the child to the other party and at the conclusion of that parents “live with” time, that parent return the child to the other party’s home. 

7. That the child live with the Wife at Christmas time as follows:

   (a)From 3.00pm 24 December 2007 to 3.00pm 25 December 2007 and each alternate year thereafter.

   (b)From 3.00pm 25 December 2008 to 3.00pm 26 December 2008 and each alternate year thereafter.

8. That the child live with the Husband at Christmas as follows:

   (a)From 3.00pm 25 December 2007 to 3.00pm 26 December 2007 and each alternate year thereafter.

   (b)From 3.00pm 24 December 2008 to 3.00pm 25 December 2008 and each alternate year thereafter.

9. That the time the child lives with the Husband be suspended as follows:

   (a)       On Mothers Day from 9.00am to 5.00pm.

   (b)On the child’s birthday from after school to 6.00pm if a school day and from 10.00am to 2.00pm if a non school day.

   (c)On the Wife’s birthday from after school to 6.00pm if a school day and from 10.00am to 2.00pm if a non school day. 

10. That the time the child lives with the Wife be suspended as follows:

    (a)       On Fathers Day from 9.00am to 5.00pm.

    (b)On the child’s birthday from after school to 6.00pm if a school day and from 10.00am to 2.00pm if a non school day.

    (c)On the Husband’s birthday from after school to 6.00pm if a school day and from 10.00am to 2.00pm if a non school day.

11. That each party be entitled to telephone the child on Tuesday at 6.30pm during these times the child is living with the other party.

12. That each party keep the other advised of any medical condition or serious injury that may afflict the child and provide details of any mediation that may be required to be administered to her.

13. That each party keep the other advised of there current residential address, landline telephone and mobile telephone numbers.

14. That the Order for the Independent Childrens Lawyer be discharged.

15. That pursuant to s.65DA(2) and s.62B of the Family Law Amendment Act 2000, 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.

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

17. Certify for Counsel.  

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLC 6322 of 2007

MR HERMAN  

Applicant

And

MS HERMAN  

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.  It concerns an application that commenced in this court by the husband seeking to relocate to Far West New South Wales.  There was a Response filed by the wife seeking that the child, … who was born in April 2000, live with her.

2. I have had the advantage of reading the file and the extremely insightful and helpful report of Ms D dated 20 October 2007.  It seems to me, through the purpose and structure of that report, an order that was made some time ago and ought not to have been made has now been re-drafted with consequential and realistic orders being entered into where both parents share the parenting of the child. 

3. The principles and objects of the Family Law Act 1975 (as amended) provide that each parent share in the duties and obligations of parenting their children and that children have a right to know and be loved by both parents.  This is not in contest. 

4. The background of the proceedings is that the husband and wife met in 1997 in the United Kingdom whilst the husband was on a working holiday.  They commenced a de facto relationship in early 1998 and married in July of that year.  They then relocated to Australia in 1999 and settled in Victoria’s North West region where the husband's parents own a farm.  Their child, as I said, was born in April 2000.  The parties visited England on two separate occasions with the child with the wife making two further trips to England on her own in 2005 and July 2006.  She has two daughters of an earlier union, both of whom, as I understand it, reside in the United Kingdom.

5. The relationship between the parties deteriorated and they separated in May 2005.  On 1 June 2005, orders were made in the local Magistrates Court for the child to live with her father and spend time with her mother on alternate weekends.  I have already expressed my disapproval of that order.  It surprises me how a judicial officer could, in the whole of the circumstances then prevailing, conclude that such an order was in the best interests of the child.  It is doubtless that there are obligations on judges of this court to carefully scrutinise welfare orders to ensure that they are appropriate and in the best interests of a child and not make orders without their consideration merely because they are requested to do so.  However, that is now history.

6. Ultimately, the husband issued proceedings in May 2007 seeking to relocate to Far West New South Wales together with the child. The reason for the move was associated with his employment.  The wife opposed the orders and in May 2007, her Honour Magistrate Popovic made interim orders restraining the husband from changing the child's address from the North West Victorian district. 

7. The report of Ms D records details of the application and the proposals of the parties.  It was the husband's proposal that the child continue to live with him during the school week and spend time with the wife on alternate weekends.  The wife, whilst seeking primary care, was prepared to consider an equal-time parenting arrangement for the child whilst both parents were living in the same location.  That, in the result, has been the recommendation and evaluation of Ms D which sits seamlessly with the best interests of the child, providing of course that the situation that now prevails will continue.

8. I was somewhat concerned in reading the issues in dispute that the wife complained the husband did not promote a positive and meaningful relationship between the child and herself and that it was her perception he devalued her relationship with the child and promoted his mother as the parent of the child.  That may well have been denied.  I simply do not know.  But matters such as that are alarming and ought not happen, if it did.  If it did not, then of course my comments may be rendered redundant.

9. In dealing with the parents, Ms D recorded that which she was informed by the wife.  Again it relates to a number of aspects that ought not take place, if they did in fact did so.  I am unsure as to that.  That would obviously have been a matter of evidentiary weight and may well be denied, but it is wrong for either party to insult or abuse the other in the presence of the child.  Paragraph 24 raises similar issues and they too are matters of some concern to me. 

10. However, and I make it quite plain, the parties have adjusted this matter and I congratulate them both on having the dignity and commonsense in doing so.  They have had the benefit of strong, independent legal advice which has been very much to their benefit in coming to a result that would have been achieved had the matter proceeded, and with great pain, through the process of litigation followed by a published judgment.

11. What is of concern is that the child did report to Ms D that her parents did not get on with each other and they said “mean things” about each other to her.  That should cease.  What is pleasing however is that the Family Consultant observed that the child appeared relaxed with each of the parents and I have no doubt that she is greatly loved by them. 

12. The evaluation of Ms D is an important conclusion within the fabric of the evidence.  She reported that the husband desired to take up employment in “other places”.  She said that the affidavit appeared to support a move to Far West NSW, indicating a minimisation of the importance of the child's relationship with her mother and a tendency to promote his own mother as the parental figure.  Ms D was concerned that the husband had not permitted the wife to spend time with the child on non‑school days.  These are matters that may well have been in contest.  Again, I simply do not know.  However, if they were events that did in fact take place, then they ought not to have happened and I place both parties on a warning that it should not happen in the future. 

13. Ms D also reported that the husband's presentation at interview and his affidavit revealed “a disrespectful attitude” towards the wife.  Again that is an observation.  As to how it would transpire in the witness box is another issue.  However, there are matters there set out in the report (particularly at paragraphs 50 and 51) that are of concern and care must be taken to ensure that the parents each support the other.

14. In the result, Ms D was of the opinion, as a single expert witness, that an equal-time arrangement was practicable because both parents lived in the same town.  She was of the view that a weekabout arrangement would offer to the wife the opportunity to “enjoy a more meaningful relationship” with her daughter and to have greater involvement in her school life and school activities.  She recommended that changeovers occur at the conclusion of school each Friday with collection occurring from school.  She made it clear that during periods that the husband was absent from North West Victoria for employment reasons, the child remain in the care of her mother and not placed with the paternal grandmother.  I agree with that.

15. The general thrust that I gained from reading the report is that one or both parties may speak disrespectfully of the other party to the child in the absence of that other party.  In a judgment I delivered on 24 January 2005, PRL & KMB, I had this to say:

    “413.There is an obligation on the part of each parent to foster the image of an absent parent.  That within itself requires discipline together with an ability to sublimate one's own feelings of pain, hurt or anger to benefit the best interests of their child.  I am not looking to the actions of a perfect parent in a utopian world but one who recognises the importance of such qualities and strives to achieve that desired end.

    414.That may mean, for example, an aggrieved parent seeking greater understanding by recourse to professional assistance.  To wallow in the mire of disillusionment, anger and bitterness can only, certainly by example alone, influence a child in a variety of negative ways against the absent parent.  The effect is dramatically compounded by the spoken word of negativity, passive alienation and subversive manipulation.”

16. I congratulate both the husband and the wife on having the ability, the dignity, and the commonsense in coming to this arrangement.  I wish them both the best for the future.  I trust that they will, in the absence of the other parent, promote that parent for the child in an honest and meaningful way.  That is their obligation.  I expect it to be undertaken.  I mark the Minutes of Consent Orders Exhibit “A”.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 15 January 2008