Hurst and Hurst (No. 2)

[2007] FamCA 787

FAMILY COURT OF AUSTRALIA

HURST & HURST (NO. 2) [2007] FamCA 787

FAMILY LAW – Children – Parenting orders - Magellan

Family Law Act 1975 (Cth)

HUSBAND: MR HURST

WIFE: MRS HURST

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 6575 of 2001

DATE DELIVERED: 25 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 25 July, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr M.P. Arnold

SOLICITOR FOR THE HUSBAND: Kenna Teasdale Lawyers

COUNSEL FOR THE WIFE: Mr. Turner

SOLICITOR FOR THE WIFE: Kennedy Guy

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms S.C. Dowler

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Danielle Webb Lawyers

Orders

1. That all previous parenting orders in respect of the child of the marriage B born in October, 2000 be discharged. 

1. That B live with the wife. 

1. That the husband and wife have equal shared parental responsibility for B.

1. That B spend time and communicate with the husband as follows :

   (a)from 10:00 am. to 5:00 pm. on each Sunday, from Sunday 5 August, 2007 to Sunday 23 September, 2007, inclusive;

   (b)from 10:00 am. to 5:00 pm. on Saturday 29 September, 2007 and Sunday 30 September, 2007;

   (c)from 10:00 am. to 5:00 pm. on Saturday 13 October, 2007 and Sunday 14 October, 2007;

   (d)from 10:00 am. to 5:00 pm. on Saturday 27 October, 2007 and Sunday 28 October, 2007;

   (e)from 10:00 am. on Saturday 10 November, 2007 to 5:00 pm. Sunday 11 November, 2007;

   (f)from 10:00 am. on Saturday 24 November, 2007 to 5:00 pm. Sunday 25 November, 2007;  and thereafter

   (g)on each alternate weekend from the conclusion of school on Friday to 5:00 pm. on Sunday, commencing on 9 December, 2007;

   (h)for one half of all school term holidays, to commence in the first term holiday in 2008, and to be the first half in all term holidays in 2008 and each alternate year thereafter, and the second half in all school term holidays in 2009 and each alternate year thereafter;

   (i)for two weeks in the Christmas holidays, on dates to be nominated by the husband in the 2007/2008 holiday period and each alternate year thereafter, and on dates to be nominated by the wife in the 2008/2009 holiday period and each alternate year thereafter, with each party to notify the other in writing by 1 September in each year of his or her intended dates, and the period of two weeks shall be divided into two blocks of one week each in the holiday periods in 2007/2008 and 2008/2009 and thereafter shall be one block of two consecutive weeks;

   (j)from 4:00 pm. on 24 December, 2007 to 6:00 pm. on 25 December, 2007 and each alternate year thereafter;

   (k)from 6:00 pm. on 25 December, 2008 to 4:00 pm. on 26 December, 2008 and each alternate year thereafter;  and

   (l)as otherwise agreed between the parties.

1. That the time provided for in paragraphs (4)(a) to (4)(c) inclusive of these orders shall be supervised by the husband’s daughter, Ms Z, or the husband’s sister, Ms M.

AND IT IS FURTHER ORDERED

1. That the changeover arrangements to give force and effect to these orders shall be as follows, subject to any agreement between the parties to the contrary :

   (a)until the commencement of the third school term in 2008, all changeovers shall take place at the home of the maternal grandmother, Ms A  and

   (b)from the commencement of the third school term in 2008 :

   (i)the husband shall collect B from school at the conclusion of the school day on Friday to commence his period of time with him pursuant to paragraph (4)(g) hereof;  and

   (ii)all other changeovers shall take place at the home of the maternal grandmother, Ms A.

IT IS FURTHER ORDERED BY CONSENT

1. That the husband be and is hereby restrained from consuming alcohol 12 hours prior to and during all periods of time that B spends in his care.

1. That the husband do all such acts and things as necessary to ensure that B is not exposed to pornography whilst B is in his care, including but not limited to installing appropriate internet software and password protection preventing access by B to any emails or sites which may contain pornographic images;  ensuring any pornographic magazines are locked away and inaccessible to B;  and further supervising B at all times B is using the computer at the husband’s home.

1. That the husband continue to attend upon Ms R for the purpose of counselling, such counselling to include but not be limited to the issue of his alcohol consumption and its effect upon behaviour and further the husband shall comply with all reasonable directions of Ms R, including but not limited to, continuing counselling with her or any other counsellor nominated by her until the counsellor is satisfied no further counselling is necessary, and Ms R shall be at liberty to notify the wife’s solicitors in the event that the husband does not comply with directions and the husband, as soon as practicable shall provide Ms R with a written authority to so notify the wife’s solicitors.

1. That each of the husband and the wife be and are hereby restrained from denigrating the other or discussing these proceedings or allowing anyone else to denigrate the other party or discuss these proceedings in the presence or hearing of B.

1. That each of the parties keep the other advised of their current address and telephone numbers.

1. That each of the parties notify the other as soon as practicable of any significant illness and/or injury suffered by B whilst in their respective care.

1. That the parties maintain a communication book regarding B and issues relating to B, such book to travel with B between the parties.

1. That the wife keep the husband advised of B’s treating medical practitioner from time to time and give the husband no less than seven days notice of any proposed attendance by B upon a psychologist or counsellor other than school counsellors or G Centre.

1. That the wife provide to the G Centre counsellor a copy of the reports of Mr P and Ms N.

IT IS FURTHER ORDERED

1. That as soon as practicable the independent children’s lawyer send a sealed copy of these orders to the Department of Human Services, Victoria.

1. That upon compliance with paragraph (16) of these orders, the independent children’s lawyer be discharged forthwith.

1. That all extant applications be otherwise dismissed.

IT IS DIRECTED

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.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6575  of 2001

MR HURST

Husband

And

MRS HURST

Wife

Independent children’s lawyer

REASONS FOR JUDGMENT

1. The parties began living together in about February 1999 and married in March 2000.  They have a son B, born in October, 2000.  In August 2001 they separated.

1. On 12 December, 2003 final parenting orders were made, by consent.  The parties retained joint responsibility for B’s long term care, welfare and development.  He was to live with the wife and have contact with the husband on each alternate weekend, each Wednesday from 3:30 to 5:00 pm., periods during school holidays and on special days. 

1. On 16 November, 2006 the wife filed an application seeking that those orders be discharged and, in lieu, B have supervised time with his father.  On the same day she filed a form 4 in which she alleged that B had been exposed to pornographic videos and pictures, and other inappropriate sexual contact.

1. On 15 December, 2006 the husband filed a response seeking that B continue to live with the wife and he have unsupervised alternate weekend time with him.

1. The matter was transferred to the Magellan list.  In due course, a family report was received from Mr P and a report of its investigations from the Department of Human Services.  Ms N prepared a psycho-sexual assessment of the husband and Mr L conducted a psychological personality test of the wife.  Orders made on 9 February, 2007 provided for B to spend time with his father on each alternate Sunday, supervised by the maternal grandmother.

1. The matter was listed for trial in these sittings.  Much to the parties’ credit, they have been able to resolve almost all outstanding issues.  With the support of counsel for the independent children’s lawyer I am asked to make final parenting orders which would provide for the husband and wife to have equal shared parental responsibility for B, for B to live with the wife and for B to spend time and communicate with the husband through a phased in regime, culminating in orders for time on each alternate weekend from the conclusion of school on Friday until 5:00 pm. on Sunday, half of all school term holidays, and time in the Christmas school holidays and on special days. 

1. The parties have agreed that contact periods through to 14 October, 2007 will be supervised by either the husband’s adult daughter, Ms Z, or his sister, Ms M.  The parties have also agreed on a number of injunctions and orders for continuing counselling, together with orders aimed at ensuring that each can play a meaningful role in B’s life.

1. I am told that there is a sticking point.  That is not unusual when parties have worked hard to resolve a raft of outstanding issues.  Counsel for the parties have asked that I resolve the issue on the basis of submissions, having regard to the evidence before the Court.  Not unusually, the evidence of the parties and other non-expert witnesses are often at odds.  Their recollection of past events varies and the parties express concerns about each other.  As that evidence has not been tested, the Court must be cautious about placing weight on disputed facts.  However, there is also much common ground.  The Court also has before it the expert evidence to which I have adverted.  Again, that has not been subjected to cross-examination, but counsel for the parties are content for me to place weight on it.

1. The parties have agreed that until 9 December, 2007 (which is the first day on which the husband’s weekend time with B would commence after school on Friday) changeovers occur at the home of the maternal grandmother.  Her home is very close to B’s school and she has spent time with B and the husband in her role of supervisor.

1. Once the husband’s time with B starts after school on Friday (rather than on a Saturday morning) the husband would like to collect B from school and return him to the maternal grandmother’s home on Sunday evening.  The wife does not support this arrangement, and seeks that all changeovers continue to take place at the maternal grandmother’s home.

1. The independent children’s lawyer supported the husband’s position, seeing it as a normalisation of the relationship between the husband and B, which has been disrupted.  It was submitted that this would allow the husband to be part of B’s school life, in that he would be at school at the end of the school week.  It is also a neutral environment, which can be more comfortable for both parents and children. 

1. While the husband relied on those matters in support of his application, it was his submission that the mother has unduly influenced B in the past, and that the maternal grandmother has been negative about the time the husband spends with him.  From these he infers that the maternal grandmother and/or the mother may influence B in ways which would cause B not to look forward to spending time with his father or, possibly, not to go with his father.

1. On the wife’s behalf it was submitted that B has been embarrassed by his father’s jokes and behaviour, that there are legitimate concerns (expressed by Mr P) about the husband’s understanding of behavioural boundaries, and that on least one occasion, B expressed some fear about being taken away by his father.  In her submission B would be much more comfortable were changeovers not to be at school but in the secure and known environment of his grandmother’s home.

1. The Family Law Act1975 does place weight on both parents playing as meaningful roles as possible in children’s lives.  Involvement in their school lives is an important aspect of that.  It is true that a pick-up at school on Friday would allow the husband to have some fleeting contact with B’s friends and, possibly, parents who might be there to collect their own children, and to see teachers, if they were available.  It must be said that nothing in the orders proposed would stop the husband having a much more significant involvement in B’s schooling than that;  there is no prohibition on him attending any activities, events and functions routinely attended by parents.  Nevertheless, I accept he would like to collect B from school. 

1. I do not place much weight on the arguments based on the potential for some malign influence by the wife or her mother.  The parties have agreed that all changeovers other than those on a Friday afternoon occur at the maternal grandmother’s home and the Court must assume from that, that both are relatively content with that arrangement.

1. Similarly, I do not place much weight on the mother’s concern about B’s prior embarrassment.  There is probably not an adult alive who has not been embarrassed by his or her parents at some time, whether at B’s age or as teenagers.

1. The concern B expressed on one occasion about his father taking him away has to be seen in the context of the difficulties the family were facing at that time.  It is not surprising he was anxious.  The Court can take comfort from Mr P’s evidence of the way B engaged with his father, when seen by him.  Mr P reported that B related easily and well with his father and interacted comfortably and warmly.  No doubt that brought joy to the husband but it must also bring some comfort to the wife, who can be confident that there is real potential for the re-establishment of the relationship between father and son.

1. The focus of the Court must be on B’s best interests.  I have no doubt that these proceedings have place great stress on both parties, and on B.  In my judgment it would be prudent to defer B’s collection from school until the beginning of term 3 in 2008.  The Friday afternoon changeovers will not start until 9 December this year, a little over a fortnight before Christmas.  It will not be until 2008 that B really gets used to spending time with his father from the close of school on Friday until Sunday evening.  While he adapts to that routine he will continue to be collected from his grandmother’s home.  By the time term three commences in 2008 he should be well used to spending this time with his father and, it is to be hoped, will have moved on from some of the anxieties generated by events in the past.

1. I will make the necessary amendment to the minute of proposed orders and ensure that the order makes clear, on its face, that this aspect of the orders is not made by consent.  Being satisfied that the other orders proposed are in B’s best interests, I make them, by consent. 

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

Dated the            day of             2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HURST & HURST