Hoche and Simplon

[2007] FamCA 746

FAMILY COURT OF AUSTRALIA

HOCHE & SIMPLON [2007] FamCA 746

FAMILY LAW - CHILDREN – Final parenting orders

Family Law Act 1975 (Cth)

FATHER: Mr Hoche

MOTHER: Ms Simplon

FILE NUMBER: DGF 550 of 1995

DATE DELIVERED: 12 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 12 July, 2007

REPRESENTATION

THE FATHER In person

COUNSEL FOR THE MOTHER: Mr D.J. McLeod

SOLICITOR FOR THE MOTHER: Reale Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Mr N.M. Eidelson

SOLICITOR FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Hardys.

Orders

1. That all previous parenting orders in respect of the children B born in December, 1991 and C born in October, 1993 be discharged.

1. That the mother and father have equal shared parental responsibility for the children.

1. That the children live with the father.

1. That the children spend time with the mother as follows:

(a)from the first Saturday until the second Sunday of either the first or third term gazetted Queensland school holidays in each year with the father to purchase all necessary flight tickets and provide copies of them to the mother at least thirty days prior to the commencement of the school holidays;

(b)for fourteen days during the long summer vacation in each year :

(i)on days and dates to be agreed and in default of agreement, from 23 December in 2007 and each alternate year thereafter and from 2 January in 2009 and each alternate year thereafter;

(ii)the father is to purchase all necessary flight tickets and to provide copies of the same to the mother at least thirty days prior to the commencement of the long summer vacation;

(c)at any reasonable time by agreement in the event the mother is in Queensland;  and

(d)at such further and other times as may be agreed from time to time.

1. That the mother be at liberty to communicate with the children at any reasonable time by telephone and the children be permitted to telephone the mother at any reasonable time. 

1. That the mother and father each keep the other informed in writing of any change of residential address or telephone number of them or the children within 48 hours of such change.

1. That the mother and father each keep the other informed of :

(a)any changes of school of the children;  and

(b)any serious illness or medical treatment affecting the children or either of them, within 48 hours of such an event.

1. That the father authorise the school or schools which the children attend from time to time to provide copies of all school reports, newsletters and order forms for school photographs to the mother.

1. That each of the parents be and are restrained from denigrating the other parent to or within the hearing of the children or either of them.

1. That all extant applications be otherwise dismissed.

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act1975, 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.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

A.That the father filed a Notice of Discontinuance on 12 February, 2007.

B.As a result of an offer in writing made by the father to the mother’s solicitors, the independent children’s lawyer spoke with the father by telephone this day, and he agreed with the substance of these orders, which are made with the consent of the mother and the independent children’s lawyer.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be referred to as Hoche & Simplon.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 550 of 1995

MR HOCHE

Father

And

MS SIMPLON

Mother

Independent children’s lawyer

REASONS FOR JUDGMENT

1. This case concerns the parties' daughters, B and C.  B was born in December 1991 and C in October 1993.  A number of previous orders have been made and family reports prepared.  Ms M prepared a report, which is annexed to an affidavit she swore on 1 September 2005.  She recommended the children (who had been living with their mother in Melbourne) move to live with their father in Queensland.

2. On 5 September 2005 interim orders were made providing for the children to move to live with their father in Queensland, from 21 September 2005.  They were to have contact with their mother for half of all Queensland gazetted school holidays, time in Queensland, if she were there, phone contact with her and other contact as agreed.

3. Subsequently, another set of orders was made on 14 December, varying those orders and providing what one might call machinery provisions and clarification of the then existing interim orders.  A number of orders were made, aimed at preparing the case for trial.  As part of that process, Ms M prepared a second family report, which is annexed to an affidavit she swore on 30 April. 

4. Although she had earlier recommended that the children move to live with their father, she was disturbed at the children's negativity towards their mother, which she saw as having arisen in the relatively brief period they had been with him.  I must say that, on my reading, their then negativity towards their mother was one of the reasons for her earlier recommendation they move, in the interim, to live with their father but in this report Ms M says nothing of that.

5. With the matter on the cusp of a trial, on 12 February, 2007 the father filed a notice of discontinuance of all his proceedings.  That left the children in limbo, living with him pursuant to interim orders, but with no application they remain there.  The evidence before the Court then was that if the children's relationship with their mother was to be sustained, there needed to be some changes to the existing arrangements.

6. The mother filed a lengthy affidavit on 19 June, to which there are nearly 40 attachments.  The last of those attachments is a letter from the father to her solicitors, dated 7 May 2007.  Putting aside the complaints that he raised as being irrelevant to the decision I am called to make this morning, the letter concludes:

   This letter is my offer to pay the cost of airfares to Melbourne and return to Gold Coast for two of the four Queensland school holiday periods per year in place of the current one way airfare for the four holiday periods, if this is more acceptable to your client. 

7. In essence, the existing orders require contact, to use the terms of those orders, in each school holiday period with each parent paying half the cost.  What he proposed was that he pay the whole of the cost for two holiday periods.  Cost has been an issue between the parties.  Other things have also been in issue between them, particularly their respective capacities to foster a relationship between the girls and the other parent.

8. Until recently the mother was in a continuing relationship, although not living with that partner.  She has children from that relationship, so has been juggling the care of those little ones with the care of two teenagers who, it is clear on the evidence, might be described as being very assertive and, at times, difficult.

9. Nevertheless, I am told by counsel for the mother, and counsel for the independent children's lawyer, that as a result of the offer in the letter to which I have referred, there have been discussions with the father, most recently this morning.  A form of proposed final order was read to him by the independent children’s lawyer, notwithstanding the fact he has withdrawn from the proceedings.

10. I am advised that the father sought one change to the proposed order, relating to the period in which he is to provide copies of flight tickets to the mother.  The parties have agreed to vary that provision.  Despite there being no written consent, I am comfortable in finding that he consents to the making of these final orders, having regard to Mr Eidelson's conversations with him this morning. 

11. The Family Law Act1975 sets out the importance of parents agreeing on parenting of their children.  I am sure the mother has had to think long and hard about these orders, particularly about agreeing to orders which provide for contact during two school holiday periods, rather than four.  I accept that she has formed the view, having regard to the problems in getting the girls to Melbourne and their behaviour once here, that this arrangement is more likely to maintain their relationship with her, and with their half-siblings.

12. The girls’ views are set out in Ms M's second report.  Given their ages one must be pragmatic in taking their wishes into account while acknowledging that they may not necessarily know what is best for them in the longer term.  It is to be hoped that these orders will ensure they have face to face contact with their mother at least twice a year and regular phone contact with her.  In due course, they may be able to spend a lot more time with her, and with their siblings in Melbourne.

13. In those circumstances I am satisfied that the orders proposed are likely to be in the best interests of the children.  All previous parenting orders for the girls will be discharged.  I will put a note to the order that the consent of the father was communicated to the independent children's lawyer, and through him, to the Court this day.  

14. For completeness, I note that the best interests of the children would not be met by orders providing for them to have more substantial or significant time with their mother than has been agreed.  Regrettably, any such orders would be likely to worsen the already troubled relationship between the mother and her daughters.

I certify  that the preceding
14 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2007.

…………………………………………
Associate.