Hungerford and Tank (No. 2)

[2007] FamCA 1549

FAMILY COURT OF AUSTRALIA

HUNGERFORD & TANK (NO. 2) [2007] FamCA 1549

FAMILY LAW – CHILDREN – Child related proceedings – Where the parties enter into extensive consent orders – Where parties do not agree on the inclusion of orders contingent upon certain future events – Where the Family Report writer and the Independent Children's Lawyer agitated the inclusion of those orders – Disputed orders included by Order of the Judge

Family Law Act 1975 (Cth)

APPLICANT: Mr Hungerford

RESPONDENT: Ms Tank

FILE NUMBER: BRC 1297 of 2007

DATE DELIVERED: 4 December 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 3 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Sayers of Counsel appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT: Harrington Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr McGregor of Counsel appeared for the Respondent Mother

SOLICITORS FOR THE RESPONDENT: Slade Manwaring, Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Hodges of Counsel appeared for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Derek & Dwyer, Solicitors

Orders

IT IS ORDERED BY CONSENT:

1. That the child, B, born … August 1993, live with     the Mother.

2. That the child shall spend time and communicate with the Father at such times and places as may be agreed but failing agreement:

   (a)For one half of the Christmas school holidays with the Father to have the second half in the 2007/2008 holiday, the first half in the 2008/2009 holidays and alternate thereafter;

   (b)One half of the other school holiday periods with the Father to have the first half in 2008, the last half in 2009 and alternate each year thereafter;

   (c)Telephone contact with the child each Wednesday and Sunday night and on the child’s birthday, Father’s day and Christmas day, except when she is in the care of the Father, between 6:30pm and 7:30pm, with the Father to call the child. Such telephone communication between the Father and the child will not be monitored or interfered with.

3. With the exception of 2007/2008 (whereby the Father is to pay for the airfare to Canberra) for the purpose of the child spending time with the Father as set out in Order 2 above, the father is to book and pay for flights from Canberra to the Coolangatta or Brisbane airport and provide details to the Mother not less than twenty-one (21) days prior to the commencement of the relevant period.  The Mother is to book and pay for flights from Coolangatta or Brisbane airport to Canberra and provide details to the Father no later than fourteen (14) days prior to the relevant period.  The Mother shall deliver the child to and collect her from Canberra airport. The Father shall collect the child from and return her to Coolangatta or Brisbane airport.

4. Whilst the child is in the care of the Father, the mother may have telephone contact with the child each Wednesday and Sunday and on Christmas day between 8:30am and 9:30am with the Mother to telephone the Father’s residence to facilitate such contact but at no other time.  The telephone communication between the Mother and the child will not be monitored or interfered with.

5. The parties shall have equal shared parental responsibility for the child.

6. (a)      Each party shall keep the other informed of their current address, mobile        and home telephone number.  Should either party change address or          mobile and/or telephone number they shall notify the other within seven   (7) days;

   (b)      The Mother is to inform the Father of the child’s email and mobile      telephone details and notify him of any changes within seven (7) days. 

7. The Father be permitted to write to the child and forward gifts and cards.  The Mother shall ensure that such letters, gifts and cards are given to the child.

8. Whilst the child is in the care of the Father the Mother shall not communicate with her except for telephone contact as permitted by these Orders or in the case of an emergency.

9. The Mother shall keep the Father notified of the name and location of the child’s treating medical practitioner and will advise of any change in the child’s treating medical practitioner within seven (7) days.

10. That neither party is to neither denigrate the other in the presence or hearing of the child nor permit any other person to denigrate the other in the presence or hearing of the child.

11. That neither party is to discuss these Court proceedings to or in the presence or hearing of the child.

12. That each party hereby authorises the other and the Orders shall be authority for the Father (and shall do all such things to communicate this Order to the child’s school):

    (a)To obtain copies of the child’s school reports, any newsletters or other notices issued by the school from time to time;

    (b)To attend parent teacher interviews, sporting activities, excursions or other such activities where the school requests parent support or participation;

    (c)To be engaged in consultation and decision making about the child’s school enrolment.

13. That within twenty-eight (28) days of the child being enrolled to participate in any sporting or other extra-curricular activity each party shall inform the other of the name of the organisation and all details of the activity including times, place/address, contact person, contact telephone number and the like such that the other parent may attend such activity to watch the child participate.

14. That the earliest possible time or within four (4) hours, each party shall inform the other party of any serious accident, or the diagnosis of any medical condition which would prevent the child from attending school, sporting or other activity.

15. For the purpose of change overs in school holiday periods:

    (a) The mid point of school holiday periods, if there is an uneven number of days, shall be 12 noon on the middle day of the period calculated by counting from and including the first day after school breaks up, (whether that it is a Friday or some earlier day during the week) and concluding on the day immediately preceding the child’s return to school, such day to be included in the calculation of the number of days;

    (b)  The mid point of the school holiday periods, if there is an even number of days shall be 6:00pm on the last day of the first half where the number of days are calculated by commencing with and including the first day after school breaks up, (whether that is a Friday or some earlier day during the week) and concluding on the day immediately preceding the child’s return to school, such day to be included in the calculation of the number of days;

    (c)  For the purpose of school holiday periods, where the Father has the first half of the school holiday period he shall collect the child from school on the final day of school and where the Father has the second half of the school holiday period he shall return the child to school on the first day of school at the conclusion of the school holiday period.

16. The Mother is to give the Father not less than thirty (30) days written notice of:

    (a) Changes to the child’s school enrolment including enrolment at a new school;

    (b) A list of the enclosed proposed school or schools in which the Mother will enrol the child.

17. The Mother is to give the Father not less than thirty (30) days written notice of any intention to reside outside of the Australian Capital Territory and the Father is to give the Mother thirty (30) days written notice of any intention to reside outside South East Queensland.

18. That the parties, if they have not already done so, shall provide proof to the other of having completed the “Keeping Up Contact” course held with Relationships Australia or Centacare, complete such a course and provide proof of such within six (6) months of the date of these Orders.

19. (a) That either party is at liberty to apply for a passport for the child and any passport obtained for the child is to be deposited with Harrington Family Lawyers immediately on its receipt and the parties are to direct Harrington Family Lawyers never to release the passport save in the event of written consent of both parents or Order of the Court;

    (b) That both parents will do all such acts and things necessary to facilitate an application for a passport.

20. That for twelve (12) months from the date of these Orders, in the event that either parent notify the Independent Children’s Lawyer of the decision by the child to not co-operate with Orders 1, 2 or 25 herein or either parent notifies the Independent Children Lawyer of an alleged contravention of these Orders, then the parties are to comply with all requests of the Independent Children’s Lawyer relevant to the parents or the child attending on a counsellor or other expert nominated by the Independent Children’s Lawyer.

21. That the Independent Children’s Lawyer nominated in these proceedings not be discharged until 3 February 2009.

22. That for the purposes of Order 19, either party shall not unreasonably withhold consent in relation to any overseas trip provided full details of the trip is given to the other party including copies of travel books, itinerary and contact details of where they will be staying overseas.

23. That the Father and the Mother be restrained from bringing any proceedings for contravention against the other for six (6) months from the date of these Orders without first complying with Order 20 herein.

24. That the Father shall forthwith arrange for the child, B, to be included on his health insurance and shall arrange to reimburse to the Mother any money received by him in relation to health care costs from his insurer upon presentation of the invoices from the Mother.

IT IS FURTHER ORDERED:

1. Should the Father reside within a three (3) hour drive of the Mother’s residence then the child shall spend time with the Father at such times and places as may be agreed between the parties but failing agreement:

   (a)      Each alternate weekend during school terms either:

   (i)from after school on Friday when the Father shall collect the child from school until 6:00pm on Sunday when the Father shall return the child to the Mother’s residence; or

   (ii)in the event that the Father arranges flights between the nearest airports to each party’s residence and book and pay for the flights he shall provide details of the flights not less than seven (7) days prior to the period commencing. The Mother shall deliver the child to and collect the child from the airport. The Father shall collect the child from and deliver her to the relevant airport. The Mother shall reimburse the Father for one half of the cost of the flights within seven (7) days; or

   (iii) in the event that the Father arranges train travel or bus travel between the nearest stations to each parties residence and book and pay for the trips. He shall provide details of the booking not less than seven (7) days prior to the period commencing. The Mother shall deliver the child to and collect the child from the train/bus station. The Father shall collect the child from and deliver her to the relevant train/bus station. The Mother shall reimburse the Father for one half of the cost of the tickets within seven (7) days.

   (b) Should the weekend coincide with a weekend when the Monday is public holiday or pupil free day then the Father shall return the child to the Mother’s residence by 6:00pm on Monday;

   (c)For one half of the Christmas school holidays with the Father to have the second half in the 2007/2008 holiday, the first half in the 2008/2009 holidays and alternate thereafter;

   (d)One half of all school holiday periods with the Mother to have the last half in 2008, the first half in 2009 and alternate each year thereafter;

   (e)Telephone contact with the child each Wednesday and Sunday night, the child’s birthday and Christmas day, except when she is in the care of the Father, between 6:30pm and 7:30pm, with the Father to call the child. Such telephone communication between the Father and the child will not be monitored or interfered with;

   (f)On the weekend coinciding with Fathers’ Day from after school on Friday to 6:00pm on Sunday. The Father shall not have the child on the weekend coinciding with Mothers’ Day;

   (g)For a period of six (6) months from the commencement of Order 25(a), the first weekend and each alternate thereafter will occur in Canberra and the second and alternate thereafter will occur in Sydney.

2. Should the Mother relocate to South-East Queensland and the Father relocate to the greater Sydney area then the Father shall spend time with the child as set out in Order 2. The Mother is to book and pay for flights and provide details to the Father not less than seven (7) days prior to the commencement of the relevant period. The Mother shall deliver the child to and collect her from the nearest airport. The Father shall collect the child from and return her to Sydney airport. The cost of flights for these periods shall be born equally by the parties.

3. The times for telephone calls referred to in Orders 2(c), 4 and 25(e) are to be taken as the time in the state or territory where the child is at that particular time.

4. 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.

5. The Father’s Application in Form 2 filed on 6 July 2007 is adjourned before   the Honourable Justice Barry to 11.00 am on 16 January 2008 for review.

6. Leave given to the Mother’s legal representatives to appear by telephone at           11.00 am on 16 January 2008.

7. The parties to notify the Registrar and the other parties by 10.00 am on 11           January 2008 if the matter is not to be listed at 11.00 am on 16 January 2008.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1297 of 2007

MR HUNGERFORD  

Applicant

And

MS TANK

Respondent

REASONS FOR JUDGMENT

1. I first dealt with this matter on an interim basis six and a half years ago.  I have noted its progress through this registry over the years through a variety of trials, an appeal, re-trial, et cetera. 

2. The matter was set down for a four day hearing, once again, commencing yesterday's date, 3 December 2007.  The parties were legally represented, an Independent Children's Lawyer had been appointed.  At the commencement of the hearing the parties through their lawyers sought time to negotiate.  The result of those negotiations is a consent order, which has been produced, it is quite extensive in its terms extending over some 26 paragraphs.

3. There are two issues, two paragraphs, in that document that are not agreed upon being paragraphs 3 and 7.  Paragraph 3 provides:

   If the father is residing within a three hour drive of the mother's residence then there should be alternate weekend spent by the father and daughter from Friday pm until Sunday afternoon

   and there are various provisions in there for transport arrangements.

4. The current geography is that the mother resides in Canberra and the father on the Gold Coast.  Paragraph 3 is premised on the basis that the father may relocate to reside with his mother in the western suburbs of Sydney.  Whether he resides with his mother, she resides in a general location and he has indicated a wish to also reside there and that would certainly make him within three hours drive of the mother's residence in Canberra.  Paragraph 7 is more problematical, it makes provisions for the mother relocating to south-east Queensland and the father remaining in Sydney. The mother says that provision is unnecessary and, in effect, fanciful because she has no intention of moving to south-east Queensland.

5. Apart from these provisions, which I shall deal with shortly, the balance of the orders are uncontroversial. The father is to have half school holidays and regular phone contact, the mother is to have phone contact while the child is with the father, provisions relating to obtaining information, provisions about communication and shared responsibility.  I would go so far as to comment that the balance of the orders are in relatively standard form.

6. The father, whilst he was relying on fairly extensive material for the hearing, was content to refer me to provisions of his affidavit filed on 20 November, together with certain paragraphs in the family report recently prepared by Mr S.

7. Whilst I think of it, paragraph 5 of the consent orders, I just want to clarify a couple of things.  That provides for the mother to have telephone contact each Wednesday and Sunday and on Christmas Day between 8.30 am and 9.30 am. 

   RECORDED:  NOT TRANSCRIBED

8. If I just put in a provision that the time references on any day relate to where the child is residing at that particular time.

   RECORDED:  NOT TRANSCRIBED

9. Well, if the child is in the care of the father the mother may have telephone contact Wednesdays, Sundays and on Christmas Day, with the mother to telephone the father's residence.

   RECORDED:  NOT TRANSCRIBED

10. The mother, for her part, has relied on various passages of her affidavit filed for the purposes of the trial, again with reference to passages from Mr S' family report.  When considering this matter I was reminded of a quotation from Professor Robert Minorcan, who was a professor of law at University of California.  He had this to say many years ago:

    Deciding what is best for a child poses a question no less ultimate than the purposes and values of life itself.  Should the Judge be primarily concerned with the child's happiness or with the child's spiritual and religious training?  Should the Judge be concerned with the economic productivity of the child when she grows up?  Are the primary values of life in warm, interpersonal relationships or in discipline and self-sacrifice?  Is stability and security for a child more desirable than intellectual stimulation? 

    These questions could be elaborated endlessly and yet where is a Judge to look for the set of values that should inform the choice of what is best for the child?  Normally the custody statutes do not themselves give content or relative weight to the pertinent values and if a Judge looks to society at large he finds neither a clear consensus as to the best child-rearing strategies nor an appropriate hierarchy of ultimate values.

    And that certainly applies, I would have thought, in this case.

11. As a result of the fact that the parties could not agree on provisions in paragraphs 3 and 7 the Independent Children's Lawyer communicated with Mr S.  As Mr S notes, this is the fifth family report in this matter in six years.  Mr S has written a very detailed, perceptive, objective and, if I may say so, hard-hitting report.  I am informed, and it is not challenged, that he supported the inclusion of paragraphs 3 and 7 in the consent orders. Counsel for the Independent Children's Lawyer thereafter made submissions to that effect.

12. For the father I was informed that the terms of paragraph 3, i.e., the relocation to Sydney, should be perceived in terms of a probability.  Paragraph 7, involving a move by the mother, is a mere possibility.  Counsel for the father placed reliance on recent amendments to the Family Law legislation where there is a presumption of shared responsibility by parents towards their children and a clear intention to place greater emphasis on including both parents in a child's life.

13. For the mother it was submitted that, as I have noted, she has no intention of moving to south-east Queensland, therefore terms are unnecessary in paragraph 7.  It is noted that the mother's eldest daughter is living 50 per cent of the time in south-east Queensland and the mother has a close relationship with her.  If the mother does not intend moving to Queensland well then paragraph 7 is of no prejudice to her because it will never come into effect.

1. It is very difficult to predict the future, next month, next week, next year, but if for whatever reason the mother does unexpectedly move to south-east Queensland the terms of paragraph 7, to my mind, avoid having the parties return to seek an amendment to any of the orders.  I will, however, delete the last sentence of paragraph 7 and provide instead that the fares are to be shared equally if that eventuality should come to pass. 

2. I will include paragraph 3 in the orders.  I have taken the time to re-read the material in light of the submissions.  I am well aware of what the mother says is the position in relation to the child's wishes and intentions.  I am motivated largely by the specific recommendation of Mr S that paragraph 3 should be included.  As I say, he is able to step back and look at the matter objectively, he has had detailed involvement in this matter over a lengthy period of time.

3. Looking back over this file at some point in the future an unbiased observer might observe "these parties must really have loved their daughter to fight over her like that."  A more experienced person may read the same file and conclude "these litigants must really have mistrusted each other to act as they have done.  If they really loved the child they would have stopped fighting over her years ago." As Mr S observes, in effect the child has become the battleground in their unremitting conflict - his words.

4. The sad probability is your daughter, your lovely intelligent bright daughter, will have less self-esteem than she otherwise would have. She will have greater difficulty forming and maintaining relationships.  She will experience a less stable lifestyle.  She will have a higher risk, sadly, of being involved in drug use or engaging in other addictive behaviours.  She is likely to experience throughout her life a deep inner sadness and hollowness that the price she has paid for her parents' conduct has been the loss of her childhood.  She is not to be blamed, of course.

5. On a positive note I commend the parties for settling.  Any settlement is better than the ordeal of litigation, I do not have to remind you of that, you have been through it.  The Judge has to make unpalatable findings, unpalatable to at least one of the parties, often both. In particular, I commend the father for the courage that he has displayed in backing down.  He is the one who has elected to withdraw himself from the battlefield.

6. I note that the ACT school holidays for the forthcoming Christmas period, as I understand it, are to operate seemingly from 24 December to 31 January.

   RECORDED:  NOT TRANSCRIBED

7. What I propose to do, in view of the history of this matter and in view of what are said to be the problems, is I am going to adjourn it.  I will make the orders, of course, that is what I have been asked to do, I will make the orders, I will include paragraphs 3 and 7, paragraph 7 as amended. 

8. I am going to adjourn this matter to 11 o'clock on Wednesday, 16 January 2008.  If there are no difficulties with the father spending time with his daughter at that stage nobody need turn up.  You simply notify each other and notify the Registrar all's well this Christmas, this New Year.  If, however, there are problems, the child not being sent or problems in any way shape or form, the matter can come before me at that time.  I sincerely hope that that will not be necessary. 

9. I thank the legal practitioners for their efforts in facilitating the production of the consent orders in this matter, they are first class.

   RECORDED:  NOT TRANSCRIBED

10. Friday, 11 January, the parties are to notify the Registrar.

    RECORDED:  NOT TRANSCRIBED

11. I will give leave to appear by phone. 

    RECORDED:  NOT TRANSCRIBED

12. Notification to the Registrar that the matter is not to be listed to be received by 10 o'clock on 11 January otherwise it is to be listed.

    RECORDED:  NOT TRANSCRIBED

13. To the Registrar and to the other parties.

    RECORDED:  NOT TRANSCRIBED

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate 

Date: 4 December 2007