Hunt & Theophane

[2008] FamCA 956

FAMILY COURT OF AUSTRALIA

HUNT & THEOPHANE [2008] FamCA 956

FAMILY LAW – CHILDRENS MATTERS – parental responsibility – interim order for sole parental responsibility to mother with certain exceptions

FAMILY LAW – CHILDRENS MATTERS –inappropriate time for final hearing due to age of child and lack of current attachment to father – interim orders made – noted matter not part-heard

Family Law Act 1975 (Cth)

APPLICANT: Ms Hunt

RESPONDENT: Mr Theophane

INDEPENDENT CHILDREN’S LAWYER: Ms Willis

FILE NUMBER: CSC 1089 of 2007

DATE DELIVERED: 15 October 2008

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 15 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Benson

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Pope

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDRENS LAWYER Ms Willis

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

1. That the mother have sole parental responsibility for the child … born … September 2006 save and except that:

   (a)The mother will not change the child’s residence from the Cairns region without first giving the father 90 days written notice in advance;

   (b)Both parties are restrained from interfering or preventing the child from participating in the religions of Buddhism and Greek Orthodox;

   (c)The mother and father will be restrained from altering the child’s name other than to effect the correction of the surname on the child’s birth certificate and to effect that change both parties will forthwith each do all acts and things and sign all documents necessary to give effect to that correction and it is noted that that father has agreed to pay one half of the $99.00 fee in that respect;

   (d)The parties ensure that the child attends upon Doctor V of the P Clinic, if time is available. This Order does not prevent the parties from taking the child to any other appropriate medical service in the event of emergencies or that medical service being unavailable;

   (e)Each of the parties are to inform the other as soon as possible without delay in the event the child requires any significant medical treatment.

2. That the child live with the mother.

3. That the mother keep the father informed of all decisions made, where possible in advance, of any major long term issues of the child.

4. That until 23 March 2009 the child will spend time and communicate with the father as follows:

   (a)From 8.30am to 5.30pm each Saturday and Sunday with changeovers to take place outside the H Shop;

   (b)On Christmas Day 2008 from 8.30 am to 4pm;

   (c)Upon the provision of two weeks written notice by the mother to the father, the father’s time may be suspended on one occasion within this period (with the time on both days to be suspended in one week) provided that such occasion does not include Christmas Day or New Years Day and provided that the mother offers make up time to the father to be taken as an additional day for each of the following two week-ends.

5. From 23 March 2009 until 23 September 2009 the child will spend time with and communicate with the father as follows:

   (a)Each week from 8.30am Friday until 5pm Friday and   Saturday from 12pm until Sunday till 12pm with changeovers to take place outside the H Shop.

   (b)Upon the provision of two weeks written notice by the mother to the father, the father’s time may be suspended on one occasion in this period (with the time on both days to be suspended in one week) provided that such occasion does not include Christmas Day or New Years Day and provided that the mother offers make up time to the father to be taken as additional day for each of the following two week-ends.

6. From 23 September 2009 until further order the child will spend time with and communicate with the father as follows:

   (a)Each week from 8.30am Friday until 5pm on Sunday with changeovers to take place outside the H Shop.

   (b)On or after midday 25 December 2009 the father is at liberty to spend a one off block period of three nights with the child and the father is permitted to travel with the child to Melbourne during this time. The child is to be returned to the mother by 3pm on the fourth day.  The Father shall provide the mother with 30 days notice of his intention to take such block contact.

   (c)Upon the provision of two weeks written notice by the mother to the father, the father’s time may be suspended on one occasion each six months in this period (with the time on both days to be suspended in one week) provided that such occasion does not include Christmas Day or New Years Day and provided that the mother offers make up time to the father to be taken as additional day for each of the following two week-ends.

7. Each party is to inform the other by letter or email of any intention to have the child fly, such flights being on commercial airlines and such notice being at least five days in advance of the proposed travel.

8. Each party shall keep the other advised of their home address, an email address and emergency contact details and advise the other of any change within 24 hours of any such change.

9. The mother and father will each make use of a joint communication book to be purchased by the mother and placed in the child’s bag at each handover pursuant to these Orders. Each of the parents shall refrain from using the communication book for any other purpose other than to inform the other as to child related issues concerning the day to day care of the child.

10.The each of the parents forthwith do all acts and things to enrol, attend at and complete the Parenting Orders Program conducted by Relationships Australia  and each shall provide the other and the Independent Children’s Lawyer with evidence of their completion.  Each party is given liberty to provide a copy of the Family Report prepared in this matter by Ms P to the course co-ordinator if so requested.

11.The parents will each attend at the Family Relationships Centre for mediation should any difficulties arise in relation to giving meaning and effect to these Orders or regarding the welfare of the child.

IT IS FURTHER ORDERED:

12.That the matter be adjourned for mention at 10am on 28 September 2009, or such other date as is requested bt the parties jointly in advance of that date in the Family Court of Australia at Cairns.  Prior to this re-listing the parties will attend upon a Family Consultant with the Family Court of Australia in an endeavour to resolve any outstanding parenting issue in dispute.

13.Liberty to apply to the parties to have the matter listed on the giving of 28 days notice to the Court and the other party and supported by an affidavit.

14.Costs certified for Counsel.

15.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.

NOTATIONS

A.It is directed that a copy of the Reasons for Judgment of today be taken out and place on the Court file.

B. It is noted that The Honourable Justice Benjamin in not part-heard in this matter.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC1089 of 2007

MS HUNT

Applicant

And

MR THEOPHANE

Respondent

REASONS FOR JUDGMENT

1. These proceedings between Ms Hunt (“the mother”) and Mr Theophane, (“the father”) in relation to their daughter.  The child was born in September 2006 and has just turned two.  It is of value to note some background in relation to these proceedings.  They were commenced by the mother on 21 December 2007 in the Federal Magistrates Court and an independent children's lawyer was appointed.  The matter was listed for hearing this week before a Federal Magistrate but due to some difficulties with regard to that Court and our Court, it was transferred to the Family Court earlier this week.  It was to be heard by me today. 

2. It is the view of all of the parties that the circumstances surrounding the parenting of the child is such that an endeavour to put in place final orders today, would have simply led to further proceedings.  On reading the affidavits and hearing the evidence of the family consultants and the submissions of counsel that is clear to the case this matter needs some more time so that the parents can put in place some arrangements and hopefully settle the conflict before this matter goes to a final hearing, if it needs to go to a final hearing at all.

3. Evidence was given by a family consultant who has seen the parties and the child over the last few months, since about March of 2008 and she made some recommendations in terms of building up the time the child has with her father over a period of 12 or 18 months.  Her evidence was that the primary attachment of the child, at present, is her mother and that a significant time needs to be given to enable the development of a stronger relationship between the child and the father.  That is not in any way to derogate that relationship, but simply reflects the circumstances that currently exist.

4. This evidence has not been tested but the parties to their credit have indicated they would be prepared to resolve, at least on a interim basis, some of the issues which are, as set out in a minute of order prepared by the independent children's lawyer.  There were some matters which remained to be determined, these include:  the place of changeover;  whether there ought to be an order preventing the mother from changing the child's residence from the Cairns area to the Atherton area;  the primary medical practitioner of the child;  whether the father should have an email address for the mother;  and parental responsibility.  In the context of this dispute these were of a fairly limited ambit, although of clearly some major concern to the parties.

5. The father is aged 42.  The mother is aged 29.  They commenced their relationship, it seems, in about 2005 and commenced cohabitation in January or February 2006.  The child was born in November 2006 and in August 2007 the parties moved to Cairns.  There was an issue as to whether that was a final move or an interim move.  I make no determination of that at this time.  The parties separated in September 2007.  There is an issue as to circumstances of separation but not the fact of separation.  Since that time the parties were involved in litigation in the Magistrates Court, which has meant that a Family Protection Order was made in favour of the mother and an order was declined in favour of the father.

6. These proceedings have commenced and the father was seeing the child on regular occasions.  In this matter there are significant, and on the face of it, troubling issues raised as to domestic violence.  On the material before me, I can make no finding in relation to that domestic violence and I particularly make it clear to the parties that I make no finding, and I note that the arrangements proposed for the child are that she spends time with each of the parents on an unsupervised basis.  However, the effect of those matters, which were alleged by both parties, it seems to me that the presumption under s 61DA cannot apply.  Section 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that the parent of a child, or a person who lives with a parent of the child is engaged in, amongst other things, family violence in terms of the very broad definition. 

7. I do not have to make a finding if there was family violence but on the evidence of both parties I could not otherwise but come to the conclusion that there are reasonable grounds to believe that one or other parent has engaged in family violence.  There is, to say the least, an enormous level of conflict between these parties.  Their communication is poor.  Whichever affidavit one reads, that comes through loud and clear and it is consistent with the evidence of the family consultant, although albeit untested.

8. The first question I have to determine in terms of the otherwise consent nature of the orders is the place of changeover.  The evidence before me is that changeover has been occurring at a public place called H.  Clearly, from the material in the communication book, this has not been entirely satisfactory but it is clear that the parties want somewhere where a changeover can occur in a public place.  The father suggests McDonald's at S.  The evidence of the mother, albeit untested, is that she lives near H.   She is going to move to her parents' home at H and she has some transport difficulties.  Again, I make no findings in relation to that but on balance it seems to me that H whilst not perfect ought to remain in place.

9. The second issue is in relation to the question of relocation and I am troubled by the term relocation, when somebody lives a mile away from anybody and I am surprised it is raised in far north Queensland where an hour’s travel is regarded as almost next door whereas in Tasmania it is regarded as one end of the island to the other.  I do not intend, in the circumstances of this case, to put in place an injunction restraining the mother from moving to the Atherton region.  That is not to be taken as encouraging her to do that, quite the contrary.  It seems to me that if the mother wants to move she ought to give notice to the father so that the father can, if he considers it appropriate, have the matter re-listed before me and I can make a determination of that on an interim basis if that is in fact an interim matter, and that is a matter for those who advise the parties.  So I will be making an order that the mother not move the child's residence from the Cairns area without giving at least 90 days notice in writing, to the father. 

10. The next issue is a question of which doctor the child attends.  As is the case in this matter the parties cannot agree.  The mother gave untested evidence that she takes the child to a Dr V at P Clinic, and that she has gone there for quite a few months and has taken the child there three times;  that doctor has treated the child;  and has details of the child's immunisations.  She says the child has been taken to another medical centre, that is the 24 hour medical centre in Cairns, on two occasions in an emergency.

11. The father gave evidence which was also untested, that he took the child to the B Medical Centre on one occasion with a rash and to a 24 hour medical centre in Cairns on another occasion when the child had a cold.  Doing the best I can with what I have at the moment it seems to me that there should be no reason why the primary doctor should not be that doctor at P Clinic, but that should not prevent the child from being taken to the Cairns Medical Centre in the event of some urgent treatment that is needed, subject to each party informing the other of that circumstance. 

12. The other less complex matter is the question of the emails.  And I will be making an order that the wife make available an email address.  Email addresses are fairly easy to come by and if the mother complains that the emails are oppressive or onerous or threatening, she need only bring that back to this Court and no doubt action will be taken. 

13. The final one, which causes me some concern, is the question of parental responsibility.  The independent children's lawyer suggests a compromise order that is that the parties have equal shared parental responsibility except for a number of matters which are set out in paragraph 1 of the proposed minute of the consent order.  The father joins with that submission and the counsel for the mother opposes it.  The concerns I have about parental responsibility are these:  firstly, these parties are not communicating at all in any meaningful or effective way, perhaps today might be an exception but it is a real concern and the evidence of the family consultant in that regard was of great value, albeit untested. 

14. Secondly, this is a matter where there is high conflict and neither party can hold their head high.  I have read all of the affidavits in this matter and each makes complaints about the other party and each in their own affidavits makes concessions about themselves, which I scratched my head about and worry for this child.  First of all, the presumption does not apply but I must consider it in my view in any event as to whether I ought to make an order for shared parental responsibility notwithstanding that the presumption does not apply.  Having regard to the level of conflict between the parties, the poor communications - one example being as minor as fixing a name spelling - which has not be resolved.  I am not convinced that equal shared parental responsibility in the interim would be in the best interests of the child, accordingly I do not intend to make such an order. 

15. I direct that a copy of my reasons be taken out and placed on the Court file.  If either parties or the independent children's lawyer require a transcript of the evidence they can order that themselves if they think it is needed, but that it is a matter for them at the end of the day.  I am not part heard in the matter, on the basis that if, for some reason, the Court -  and I am not saying that this is going to happen -  for the sake of the Cairns practitioners;  we do not know with the two Courts in the future.  I will note that I am not part heard in the matter.  I certify for counsel. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:     

Date:              15 October 2008