Jell and Jell

[2009] FamCA 960

FAMILY COURT OF AUSTRALIA

JELL & JELL [2009] FamCA 960

FAMILY LAW – CHILDREN – whether in the best interests of the child make Orders and Notations with the consent of all parties save for the Independent Children’s Lawyer – relevant considerations

Family Law Act 1975 (Cth) ss 60CC, 69ZN

APPLICANT: Ms Jell

RESPONDENT: Mr Jell

INTERVENOR: Mr Barrow

INTERVENOR: Ms Barrow

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

FILE NUMBER: WOC 533 of 2007

DATE DELIVERED: 6 October 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 12 May 2009
6 October 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Hilton King Lawyers

SOLICITOR FOR THE RESPONDENT: Verekers Lawyers

THE INTERVENORS: Appeared unrepresented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

Orders

1. That the mother and the father are to have equal shared parental responsibility for the child, … born … January 2000, in relation to the care, welfare and development of a long-term nature involving the child to include but not be limited to issues about:-

   a.the education of the child – both current and future;

   b.the health of the child;

   c.the name of the child, and;

   d.any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with either parent.

2. That the father have sole responsibility for making decisions about the child’s day to day care, welfare and development during times that the child lives with or spends time with the father.

3. That the mother have sole responsibility for making decisions about the child’s day to day care, welfare and development during times that the child lives with or spends time with the mother.

4. That the child is to live with the father.

5. That the child is to spend time with the mother as follows:-

   a.Commencing on 24 September 2009, each alternate week from after school Thursday until the commencement of school Monday or where the mother’s weekend falls on a long weekend, the commencement of school Tuesday.

   b.For the first half of each NSW school holiday period to commence from the conclusion of school in Terms 1, 2 and 3, after the break up of school and concluding at 12.00 noon on the middle Sunday in the school holiday period.

   c.Excluding Christmas Eve, Christmas Day and Boxing Day, for one half of the Christmas school holiday period each year alternating between the first half in even numbered years and the second half in odd numbered years.

   d.From 10:00 am 24 December 2009 until 12:00 noon 25 December 2009, and thereafter each alternate year.

   e.From 12:00 noon 25 December 2010 until 5:00 pm 26 December, 2010, and thereafter each alternate year.

   f.In the event that the child is not already spending time with the mother during the Mother’s Day weekend of each year, the child is to spend time with the mother from 10:00 am to 5.00 pm Sunday on Mother’s day.

   g.In the event that the child is spending time with the mother during the Father’s Day weekend of each year, the mother’s time with the child is suspended from 10.00 am to 5.00 pm Sunday on Father’s Day. 

   h.That in the event the child is living with the father on the … January (the child’s birthday) then the mother is to spend time with the child from 1.00 pm until 6:00 pm.

   i.That in the event the child is spending time with the mother on … January (the child’s birthday) then the father is to spend time with child from 1.00 pm until 6.00 pm.

6. That when the child is living with or spending time with the father, the father is to facilitate any communication between the child and his mother in the event that the mother communicates with the child via email, Windows Live MSN or any other written form of communication.

7. That when the child is living with or spending time with the mother, the mother is to facilitate any communication between the child and his father in the event that the father communicates with the child either via email, Windows Live MSN or by telephone.

8. The parties agree to confirm a suitable time to facilitate communication between the mother and father and the child via Windows Live MSN and such other median for the purpose of Orders 6 and 7. 

9. That the father is to keep the mother informed as soon as is reasonably practicable of:-

   a.any medical problems or illness suffered by the child whilst in his care;

   b.any occasion that the child is due to be hospitalised or has been hospitalised;

   c.        any medication that has been prescribed for the child;

   d.any specialist medical appointments the child is due to attend with any medical doctor, psychiatrist, psychologist, counsellor or therapist so that the mother has sufficient notice to attend any scheduled appointment;

   e.any significant social, school or religious functions which the child is to attend;

   f.the father’s email address, his telephone contact numbers (including both landline and mobile if applicable) and his residential address.

10. The mother is to keep the father informed as soon as is reasonably practicable of:-

    a.any medical problems or illness suffered by the child whilst in her care;

    b.any occasion that the child is due to be hospitalised or has been hospitalised;

    c.any medication that has been prescribed for the child;

    d.any specialist medical appointments the child is due to attend with any medical doctor, psychiatrist, psychologist, counsel or therapist so that the father has sufficient notice to attend any scheduled appointment;         

    e.any significant social, school or religious functions which the child is to attend;   

    f.the mother’s email address and telephone contact numbers (including both landline and mobile if applicable) and her residential address.

11. That each parent is entitled to attend all events involving the child including, but not limited to:-

    a.sporting fixtures;     

    b.extra curricular activities that allow for parental attendance or participation;        

    c.school functions and events that allow for parental attendance or participation and the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless otherwise agreed upon between the parents.

12. To facilitate Order 5(a) the mother (or the mother’s delegate) is to collect the child from school, the school bus or the father’s residence, as applicable, at the commencement of the mother’s time with the child and then return the child to the school or the father’s residence, as applicable, at the conclusion of the mother’s time with the child.

13. To facilitate Orders 5(b) to 5(i) inclusive the father is to deliver the child to G Railway Station at the commencement of the mother’s time with the child and the mother is to return the child to the father at G Railway Station at the conclusion of the mother’s time with the child unless otherwise agreed. In Order 5 (i) the mother is to deliver the child to the father and collect the child from the father at G Railway Station or such other venue as agreed.

14. To facilitate these Orders, Orders 5(a) is suspended during all New South Wales school holiday periods and Order 5(a) is to recommence on the first Thursday after the child returns to school.

15. That the mother and father are restrained from denigrating the other parent in the presence or within hearing of the child and each parent is to us his or her best endeavours to prevent any other third party from denigrating the other parent in the presence or within hearing of the child.

16. That whenever the father notifies the mother by email or SMS of any medical appointment the child is to attend the father shall send a copy of such email or SMS to the mother’s parents to enable the mother’s parents to attend at the appointment to assist the mother with Auslan interpreting and translations.

17. On those occasions when the mother’s parents are not able to attend at the medical appointment with the mother then the father is to contact the mother’s parents by telephone or email or SMS to advise the outcome of the medical appointment including the advice received and details of any further appointments.

18. Subject to the orders made this day, all outstanding applications are dismissed.

19. That the proceedings be removed from the Active Pending Cases List.

NOTATIONS

A.The mother agrees to make arrangements for the child to learn Auslan.

B.The father agrees to facilitate any arrangements the mother may make for the child to learn Auslan.

C.The father agrees to encourage the child to learn Auslan.

D.The mother and father agree that they will try and facilitate a positive relationship between the child and the other parent and each parent’s extended family.

E.The father agrees that if the mother is not available to spend time with the child, that time with the child, in accordance with these orders, may be exercised by the mother’s parents, Mr and Mrs Barrow. In the event the mother is not available she will provide a minimum of one week’s notice to the father except in the case of an emergency to enable the father to communicate with the child that he will be spending time with the maternal grandparents.

F.That the father and the maternal grandparents have agreed that the maternal grandparents may spend time with the child as detailed in the parenting agreement entered into by the parties.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 533  of 2007

MS JELL

Applicant

And

MR JELL

Respondent

REASONS FOR JUDGMENT

Introduction  

1. On 30 September 2009, I granted leave by consent for the maternal grandparents to intervene in the proceedings. I also stood the proceedings over for mention before me today against the background that I was informed by the legal representatives for the mother and father that proposed terms of settlement had been signed by them as well as the maternal grandparents who were unrepresented.

2. The proposed terms of settlement had not been signed by the Independent Children’s Lawyer who informed me of her desire to consider the matter further given her reservations about signing the document. Her view then was that it was not in the best interests of the child for there only to be a notation in relation to periods of time that the child would spend with the maternal grandparents, as opposed to an order being made instead.

3. I propose to make orders and notations as sought in accordance with the proposed terms of settlement which will be dated today, against the background to which I will now refer and for the reasons subsequently set forth.

4. The parties cohabited for a period of approximately 9 years which commenced in or about the beginning of 1995 and continued until they separated during December 2003.

5. The parties married in March 1999 and that marriage was dissolved by divorce order made 1 March 2005.

6. The mother is 33 years of age and has re-partnered.

7. The father is 44 years of age. He has a child of a previous marriage who is about 16 years of age and, so far as I have been able to ascertain, principally lives with his mother.

8. The communication between the parents has not been positive so far as matters affecting the child are concerned. That may be exacerbated by their deafness, although it seems from the evidence before me that each has other issues described in more detail in Exhibit 4, being the report of the Single Expert Dr M, psychiatrist dated 22 June 2009.

9. The child of the parents who is the subject of these proceedings is a son, 9 years of age having been born in January 2000 (“the child”). He principally lives with the father but spends regular periods of overnight time in the care of the mother.

10. The child has significant health issues including Asperger’s Syndrome, behavioural difficulties and other issues described in more detail in Exhibit 4.

11. The evidence that I have relied upon comprises the following:-

    i)Exhibit 1, being copies of the parenting questionnaires completed by the mother and father.

    ii)Exhibit 2, being Child Dispute Conference Memorandum of Family Consultant O, dated 12 June 2008.

    iii)Exhibit 3, being a Child Responsive Memorandum of Family Consultant B, dated 28 November 2008.

    iv)Exhibit 4, to which earlier reference has been made.

    v)Oral evidence given by the mother and father as well as expert evidence given by Family Consultant B on the first day of the Less Adversarial Trial before me which took place on 12 May 2009.

12. In addition, I have taken into account the submissions made by the experienced and able solicitors for the mother and father and similarly qualified Independent Children’s Lawyer, as well as those made, albeit briefly, by the maternal grandparents who supported the proposition that orders should be made in accordance with the proposed terms of settlement. Their submissions were important in that it is common ground that they have had and continue to have a loving and supportive relationship with the child, as well as being supportive of the parents and, in particular, the mother.

History of Orders made

1. The mother and father have been engaged in parenting litigation in both the Federal Magistrates Court as well as this Court for almost two and a half years. Past orders have included the following.

2. On 15 May 2007, interim orders were made by consent which in substance provided for the mother and father to have equal shared parental responsibility for the child; that the child live with the father and that he spend time with the mother each alternate weekend from after school Thursday until commencement of school on Monday; half of all school holiday periods and other specified occasions.

3. On 22 January 2008, the proceedings were transferred to the Federal Magistrates Court for hearing.

4. On 21 April 2008, the proceedings were transferred to this Court. The Independent Children’s Lawyer was appointed and the parties directed to attend a Child Dispute Conference.

5. On 18 August 2008, directions were made.

6. On 8 December 2008, directions were made.

7. On 10 March 2009, an order was made appointing the Single Expert Witness Dr M, psychiatrist.

8. On 29 April 2009, directions were made.

9. On 12 May 2009, the first day of the hearing in accordance with the Less Adversarial Trial procedure took place. Directions were made.

10. On 4 August 2009, the proceedings were stood over for mention on a date and time to be fixed against the background that the Independent Children’s Lawyer was endeavouring to arrange a legally aided Child Dispute Conference with the facility of a telephone link with Dr M.

11. On 26 August 2009, by consent the proceedings were adjourned to 7 September 2009.

12. On 7 September 2009, the proceedings were further adjourned for mention on 30 September 2009 due to the likelihood of further discussion in an endeavour to resolve areas of difference and the possibility that the maternal grandparents may seek leave to intervene.

13. On 30 September 2009, orders and notations were made as earlier referred to.

RELEVANT LEGAL PRINCIPLES PURSUANT TO THE FAMILY LAW ACT 1975 AS AMENDED (“THE ACT”)

1. Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:

“A Court must regard the best interests of the child as the paramount consideration.”

1. That provision is re-emphasised in section 65AA.

2. For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3).  In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the children and the principles that underlie those Objects.  In substance, they include the benefit to children of their parents having:

   “a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence;  ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”.  [emphasis added]

3. The principles underlying those Objects, in summary, include:

   (a)children having the right to know and be cared for by both parents;

   (b)children having a right to spend time with and communicate with both parents and other significant persons on a regular basis;

   (c)the joint sharing by parents of duties and responsibilities in relation to their children;

   (d)the imperative for parties to agree about future parenting of children;  and

   (e)the children’s right to enjoy their culture including with others who share that culture.

Conclusion including relevant primary and additional considerations

1. This judgment is necessarily truncated given that the evidence has not been fully tested due to the stage at which the matter was resolved on all issues, save and except that the Independent Children’s Lawyer was not prepared to sign the proposed terms of settlement.

2. I have concluded that it is in the best interests of the child to make the Orders and Notations as sought by the parties absent the consent of the Independent Children’s Lawyer due to the weight that I give to a combination of the matters set forth in the following reasons. Those matters reflect both the primary consideration of “the benefit to the child of having a meaningful relationship with both of the child’s parents” as required to be considered pursuant to section 60CC(2)(a) and relevant “additional considerations” pursuant to section 60CC(3). I have also taken into account the saving provisions of section 60CC(5) due to the consent that is provided by all of the parties who best know the child, notwithstanding the position taken by the Independent Children’s Lawyer. So far as her position is concerned, I reiterate the view that I expressed to the parties and their legal representatives as well as the interveners on the last two mentions of these proceedings before me that it is commendable that the Independent Children’s Lawyer has fully carried out her responsibilities by giving serious consideration to all relevant matters for the purpose of making independent submissions. It would have been an easier task for her to merely rubber stamp the approach taken by the other parties. The Independent Children’s Lawyer approach demonstrates why it is of importance that there is truly an Independent Children’s Lawyer.

3. The parents of the child have been engaged in litigation in relation to parenting issues for approximately two and a half years in two courts.

4. The child who is the subject of the proceedings has very serious health issues and as a consequence, particular needs for his welfare referred to in some detail in the reports of experts. In Exhibit 3, the summary of expert assessments is in the following terms:-

   “[The child] is a young child with very special needs due in part to the behavioural difficulties associated with his diagnosis of Asperger’s Syndrome. It appears that his fundamental needs include stability, predictability, a set routine, graded and planned change, as well as warmth and affection, an absence of conflict and parents who are able to agree on his overall care.”

1. Further description of and the emphasis in relation to the management of the child’s special needs are set forth in Exhibit 4. Particular regard was placed in relation to the clarification of “details of the parenting arrangement” with an established routine and lack of disruptions.

2. The matter is further complicated by the difficult personal issues that each of the parents have, referred to in more detail in the expert evidence.

3. The above matters are not the subject of disagreement.

4. The Independent Children’s Lawyer quite rightly points to the historical, current and likely continued future benefit to the child of maintaining his loving relationship with the maternal grandparents and the support that they can continue to provide for the benefit of the child, as well as each of the parents.

5. The parents and the maternal grandparents are agreed that the nature and extent of the continued relationship between the child and the maternal grandparents will be as reflected in the Notations to the proposed terms of settlement.

6. The Independent Children’s Lawyer quite correctly submits that Notations do not have the force and effect of an order. However, the agreement between all of the parties is clear from the terms of the Notations. In the event that both or either of the parents fail without a reasonable basis to adhere to that agreement, the Notations of that agreement represent compelling evidence to support orders being made if necessary on the application of both or either of the maternal grandparents. Indeed, a failure to adhere to the agreement without reasonable cause may also result in an order for costs being made against the parent who is demonstrated to have resiled from the agreement. Those matters should provide a further incentive for the parents or either of them to continue to comply with the agreement that they have now reached.

7. No doubt, the parties will have to make different arrangement from time to time from those reflected in the proposed terms of settlement, whether they be Orders or Notations, to accommodate the ongoing reasonable needs and activities of the child who is still quite young. Flexibility and sensitivity should be the keynotes for the ongoing relationship and arrangements that are made between all of the parties. Hopefully, those factors will feature in the continued relationship without a blind adherence to arrangements which may be suitable for the child today but need revision at different times in the future.

8. It is important to also bear in mind and give consideration to the alternatives to orders and notations being made in accordance with the proposed terms of settlement. There is no suggestion that the parties would then abandon the litigation. Consequently, the alternative to making orders and notations as sought is to lock the parties into a continuation of the litigation pathway which has existed for too long and which also has no doubt devoured much of the parties’ emotional and financial resources. One can only ask rhetorically how that alternative could possibly be in the best interests of the child, notwithstanding perceived imperfections in the proposed terms of settlement, including an agreement reflected in Notations rather than Orders. It must be also borne in mind that the child’s special needs against his very serious health issues require what the experts have emphasised as being “stability”, “predictability”, and “an absence of conflict”. Those ends will largely be achieved by making the Orders and Notations as urged by all parties with the exception of the Independent Children’s Lawyer.

9. I have also borne in mind the provisions of 69ZN(2), (6) and (7) which set out relevant principles for the conduct of child related proceedings. Those principles include but are not limited to the impact that the conduct of the proceedings may have on the child; the conduct of proceedings in a way that will promote cooperative and child focused parenting and that proceedings be conducted without undue delay. With regard to the last mentioned matter, further delay is likely to be significant were these proceedings to be continued as dates for hearing are not available until early 2010.

10. Accordingly, it is for all of those reasons that I have determined that in accordance with section 60CA, it is in the best interests of the child to make the Orders and Notations as sought in the proposed terms of settlement.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate: 

Date:  8 October 2009