Kaly and Kaly (No. 3)

[2007] FamCA 1356

FAMILY COURT OF AUSTRALIA

KALY & KALY (NO. 3) [2007] FamCA 1356

FAMILY LAW – CHILDREN - Final parenting orders – Best interests of the children

Family Law Act 1975 (Cth)

APPLICANT: Mr Kaly

RESPONDENT: Mrs Kaly

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 44 of 2006

DATE DELIVERED: 14 November 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 14 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr. Hoult, as Amicus Curiae

SOLICITOR FOR THE APPLICANT: Self represented

COUNSEL FOR THE RESPONDENT: Mr. Grigg

SOLICITOR FOR THE RESPONDENT: Le Souef Preston & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms. Elleray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Gorman & Hannan

Orders

1. That all previous orders be discharged.

2. That the husband’s form 18 contravention application filed 18 July, 2007 be marked withdrawn.

3. That the parties have equal shared parental responsibility for the children of the marriage, M born … September, 1993 and B born … January, 1997. 

4. That the said children live with the wife and that she be responsible for their day to day care welfare and development.

5. That the husband be permitted to communicate with the children by sending them cards letters and gifts from time to time and that otherwise the time that the husband spends with the said children be reserved.

6. That the wife keep the husband advised of the address of the children and any change thereto.

7. That the wife authorise the children’s school to provide the husband, at his expense, copies of all school reports, newsletters and school photographs, and post to the husband copies of any sporting club photographs.

8. That the wife advise the husband of any major illness, medical issue, hospitalisation, schooling or legal issue concerning the children. 

9. That all extant children’s applications be otherwise dismissed.

10. That the independent children’s lawyer be discharged forthwith.

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

12. That pursuant to s.62B and s.65DA(2), 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

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

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

AND THE COURT NOTES

That the father wishes to see the children but respects their current wishes.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 44  of 2006

MR KALY  

Husband

And

MRS KALY

Wife

REASONS FOR JUDGMENT

1. This matter has a lengthy history, litigation having commenced in January 2006 when the wife filed an application for final parenting and property orders.  The parties’ children are B, born in January, 1997 and M, born in September, 1993.  I do not propose to rehearse that history, some of which is discussed in a judgment of Bennett J., delivered on 2 May, 2007. 

2. Her Honour noted that the case had been referred into the Children’s Cases Program, had been assigned to Watt J. and was first listed before him on 21 September, 2006.  An independent children’s lawyer was appointed, a number of interim parenting orders were made and the case was adjourned to a continuation hearing to 10 November, 2006.  On 10 November, 2006 further parenting orders were made and the matter was adjourned to a further continuation hearing on 4 June, 2007.

3. The matter came before Bennett J. on 2 May, 2007, pursuant to an application filed by the wife on 3 April, 2007, which concerned the transfer of the property proceedings to the Federal Magistrates’ Court.  Her Honour recorded the parties’ agreement that their pending property proceedings be transferred to the Federal Magistrates’ Court at Dandenong.  For reasons set out in her judgment, Bennett J. determined that the legislation was not intended to have the effect of parties running proceedings concurrently in two courts and she declined to transfer the property applications. She noted that the parties were, in the circumstances, giving consideration to seeking to have the property applications determined in this Court pursuant to the provisions of Division 12A, and she remarked on the practicality of that solution.  She directed that if they did not adopt it, the parties could apply to have the matters listed before her on 4 June, 2007 for directions in respect of the trial of the property proceedings in this court, separately to the applications for parenting orders.  Save as to the question of the track for the property proceedings in this Court, this disposed of the form 2 application. 

4. It appears the matter did not come back before Bennett J. on 4 June, 2007.  On that day the case was listed before Watt J.  Among other orders made that day was paragraph (7), in these terms :

   On the wife’s application filed 3 April, 2007 I order that pursuant to s.33A of the Family Law Act 1975 filed 23 January, 2006 insofar as it seeks orders for property settlement be transferred to the Federal Magistrates’ Court at Dandenong.

   It is obvious that the words “the wife’s application” were inadvertently omitted before “23 January, 2006”. 

5. As no reasons for judgment are on the file I can say nothing about the reason for that order, save that his Honour clearly revisited the issue earlier argued before Bennett J.  A note to that order records that both parties considered it appropriate for the children’s issues to be dealt with before a final hearing of property applications.

6. On 4 June, 2007 Watt J. adjourned the Children’s Cases Program proceedings to a date to be fixed before him for a conclusion hearing, with a duration of two days.  He directed the preparation of a family report and made a number of orders designed to ensure the matter was ready for that hearing.  There was to be a telephone mention on 6 August.

7. The husband subsequently filed an application for contravention of orders, on 18 July, 2007.  That did not come before Watt J., but before Young J.  On 2 August, 2007 Young J. adjourned it for hearing before Watt J. (as part of the Children’s Cases Program) on 13 August, 2007. 

8. On 13 August, 2007, by consent, Watt J. ordered that all orders requiring B to spend time with his father or communicate with his father be suspended. Orders were made relating to the adducing of evidence referrable to the father’s non attendance that day, and the proceedings were otherwise adjourned to 15 August, 2007.

9. The following day, 14 August, Watt J. vacated the hearing fixed for 15 August, 2007 and adjourned the matter for mention by telephone before him on a date to be fixed. 

10. On 23 October, 2007 Watt J. made further orders regarding filing of affidavits by the father or lay witnesses on whom he proposed to rely and granted leave to the ICL to issue a subpoena for the production of Victoria Police records.

11. In due course, the applications for parenting orders were listed before Watt J., to commence today.  A family report, prepared by Mr S, was before the court;  it is dated 8 August, 2007.  It summarises the problems the children have faced, the lack of communication between the parents, and the highly conflictual circumstances in which the children are living.  The relationship between the father and his sons has deteriorated to the point where they are no longer spending time with him.  Both boys had made it clear that they did not want an ongoing relationship with their father, as a result of their father’s negative behaviour towards them and towards their mother.  Mr. S recommended that M and B continue to live with their mother and that the question of their time with their father be reserved. 

12. The parties are all represented today, Mr. Hoult appearing as amicus for the father.  The parties and their counsel are very keen to have final orders made today, by consent.  They have agreed that the parties have equal shared parental responsibility for M and B and that the children should continue to live with their mother.  The proposed orders provide for the father to communicate with the children by cards, letters and gifts from time to time, and that otherwise his time with the children be reserved.  Orders provide for the father to be kept advised of the children’s address and of any major illness, medical issue, hospitalisation, schooling or legal issues.  In addition, the mother will authorise the children’s school to provide to the husband copies of school reports, newsletters and school photographs and similar items. 

13. This is the end of a very long road for these parties, who have struggled to agree on the best outcome for their children.  Watt J. is not here today, because he is ill.  It is hoped he will be available tomorrow but there must be a degree of speculation in that.  The parties and their legal advisers are here now, and submit that it is in the best interests of the children for final parenting orders to be made by me.  The orders sought are consistent with Mr. S’ recommendations and, all agree, in the best interests of the children.

14. In these circumstances, and despite the various earlier listings before Watt J., I am prepared to accede to their request that the trial before Watt J. (in the sense that the trial started when the case was first listed before him as part of the Children’s Cases Program) be discontinued or aborted.  There is no prejudice to the parties in making such an order.  The hearing of the applications for final parenting orders can then commence before me.  Based on the submissions of counsel, and on the recommendations of Mr. S, I am satisfied that the orders proposed are in the best interests of M and B, who need to be freed from the continuing pressure of this litigation.  I make final parenting orders in terms of the proposed minutes.

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

Associate

Date: 14 November 2007