Kerger & Kerger
[2022] FedCFamC1F 859
Federal Circuit and Family Court of Australia
(DIVISION 1)
Kerger & Kerger [2022] FedCFamC1F 859
File number(s): MLC 14615 of 2018 Judgment of: BENNETT J Date of judgment: 25 October 2022 Catchwords: FAMILY LAW- PARENTING- where final orders sought by consent on basis that mother withdraws allegations of sexual abuse of 3 children against father- resolution followed a family report adverse to the mother’s previous case.
FAMILY LAW- CASE MANAGEMENT- where best interests of children require that parties be able to return to court without loss of priority if parenting arrangements break down.
Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 25 October 2022 Place: Melbourne (Via MS Teams) Counsel for the Applicant: Mr Whitchurch Solicitor for the Applicant: Duane Portway Family Law Counsel for the Respondent: Ms Dwyer Solicitor for the Respondent: Macgregor Solicitors Counsel for the Independent Children’s Lawyer: Ms Renou Solicitor for the Independent Children’s Lawyer: KS Family Lawyers ORDERS
MLC 14615 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KERGER
Applicant
AND: MS KERGER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BENNETT J
DATE OF ORDER:
25 October 2022
BY CONSENT THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The Father have sole parental responsibility for major long-term non-urgent issues for the children of the relationship, namely:-
(a)X born 2014 (“X”);
(b)Y born 2015 (“Y”); and
(c)Z born 2018 (“Z”);
collectively referred to as “the children”.
3.The mother and the father, by their servants and/or agents be and are hereby mutually restrained from causing permitting or suffering any of the children X born 2014, Y born 2015, and Z born 2018 (“the children”) to be known by any family name other than “[Kerger]” including referring to themselves or each other as “[Kerger]”.
4.Paragraph 2 of this Order be conditional upon:
(a)The Father consulting the Mother in writing regarding any major issues for the children, or either of them;
(b)The parents making a genuine effort to come to a joint decision about any such issue; and,
(c)If agreement is not reached within 14 days the Father shall make the final decision and advise the Mother in writing about any such issue.
5.The children live with the Father from the conclusion of school or 3.30pm on Friday 28 October 2022 until the conclusion school or 3.30pm on Friday 4 November 2022, and each alternate week thereafter.
6.The children live with the Mother from the conclusion of school or 3.30pm on Friday 21 October 2022 until the conclusion school or 3.30pm on Friday 28 October 2022, and each alternate week thereafter.
7.The parents be restrained by injunction from moving the children’s residence to any location more than 60 kilometres away from B School in the State of Victoria.
8.The children spend time with the Father as follows:-
(a)for each school term holiday period, with each parent for one half (50%) of each school holiday period as agreed between the parents in writing, and failing agreement with the Father for the first half of each school holiday period and the Mother in the second half of each school holiday period; and
(b)for the long summer school holiday period, with each parent for one-half (50%) of each of the long summer school holiday periods as agreed between the parents in writing, and failing agreement with the parents on a week-about basis, in the same pattern as the term time.
9.For the avoidance of doubt as to the interpretation of the spend time orders:-
(a)the school term time specified in paragraph 5 and 6 of these orders shall resume at the conclusion of the school holidays at the same pattern in the fortnightly cycle as if the school holidays had not occurred; and,
(b)the week about care arrangement during the summer school holidays shall continue until there are insufficient nights to complete a full week-about cycle and the children shall spend half of any residual nights with each parent as agreed, and failing agreement, starting with the Father for the first half of the residual nights.
10.Notwithstanding the effect of any other order, the time the children are to spend with either parent shall be suspended and the children shall spend time with their parents on special occasions as follows:-
(a)on the Mother’s Day weekend each year, with the Mother from 6.00pm on the Saturday immediately before Mother’s Day until the commencement of school or 9.00am on the Monday immediately following Mother’s Day;
(b)on the Father’s Day weekend each year, with the Father from 6.00pm on the Saturday immediately before Father’s day until the commencement of school or 9.00am on the Monday immediately following Father’s Day; and
(c)for the Christmas period each year:-
(i)With the Mother from 3.00pm on 24 December (Christmas Eve) until 3.00pm 25 December Christmas Day in 2022 and in each alternate year thereafter;
(ii)With the Father from 3.00pm on 25 December (Christmas Day) until 3.00pm 26 December Boxing Day in 2022 and in each alternate year thereafter;
(iii)With the Father from 3.00pm on 24 December (Christmas Eve) until 3.00pm 25 December Christmas Day in 2023 and in each alternate year thereafter;
(iv)With the Mother from 3.00pm on 25 December (Christmas Day) until 3.00pm 26 December Boxing Day in 2023 and in each alternate year thereafter.
(d)for the Easter period each year:-
(i)With the Father from 10.00am on Good Friday until 5.00pm on Easter Saturday in 2023 and each alternate year thereafter;
(ii)With the Mother 10.00am on Good Friday until 5.00pm on Easter Saturday in 2024 and each alternate year thereafter;
(iii)With the Mother from 5.00pm on Easter Saturday until 5.00pm on Easter Sunday in 2023 and each alternate year thereafter; and,
(iv)With the Father from 5.00pm on Easter Saturday until 5.00pm on Easter Sunday in 2024 and each alternate year thereafter.
11.Unless otherwise agreed between the parties in writing, all school day changeovers shall occur for all three children, at the children’s school. On non-school days, changeovers shall take place at McDonald's City C.
12.Each party shall forthwith (within 24 hours unless in an emergency and in that case as soon as possible by telephone) notify the other in writing, of any significant medical matters or welfare concerns that affect the children (or either of them) whilst in their care. Each parent shall advise the other via the app (as herein after defined) of any medical or dental treatment including the name of the clinic and treater of the children (or either of them) have received whilst in that parents care within 24 hours of the treatment.
13.The Mother shall provide a list of medical practitioners or organisations that the children or any of them have attended for treatment whilst in her care since 20 June 2018.
14.The children shall be at liberty to communicate with each parent by telephone or Facetime at such reasonable times as requested by the children and each parent shall facilitate and not prohibit the children engaging in such communication with the other parent.
15.The parents shall do all acts and things and sign all documents necessary to authorise both parents to communicate with any of the children’s treating medical professionals or allied health practitioners and schools to authorise such persons / organisations to release to each party any information relating to the children’s health, schooling, events, awards, progress and the like from time to time.
16.The parents shall do all such acts and things and sign all documents necessary to authorise both parents to attend all parent-teacher interviews, performances, concerts and any school event or extra-curricular activity involving any of the children to which parents are usually invited or usually attend, and both parents shall be at liberty to attend all such events.
17.The parties shall communicate with each other in relation to the care and wellbeing of the children through the AppClose application (“the app”) and all communications shall be conducted in a polite and respectful manner.
18.Each party shall notify the other in writing through the app of their residential address and contact telephone number forthwith (within 14 days) prior to any such change.
19.Both parents shall be at liberty to travel interstate and overseas with the children strictly at times that the children are scheduled to be in their care (i.e. such travel shall not affect the time the children are to spend with the other parent except with prior written agreement between the parents), subject to the following:-
(a)in the case of overseas travel, with the other parent’s prior consent in writing which shall not be unreasonably withheld; and
(b)the travelling parent shall provide the non-travelling parent with the following information no less than 30 days prior to any interstate travel, or no less than 60 days prior to international travel:-
(i)copies of travel itineraries which shall detail all locations to which the children are to travel and all flights/ships the children will be travelling on;
(ii)all address/es at which the children will be staying for the duration of the travel;
(iii)a contact telephone number on which the travelling parent and the children can be contacted on during the period of travel; and
(iv)in the case of international travel, a copy of travel insurance for the children which shall be obtained by the travelling parent.
20.The parties shall do all acts and things and sign all documents necessary to obtain and renew Australian Passports for the children (or any of them) in the future at the parties’ equal shared expense.
21.Both parties, their servants and agents be and are hereby restrained by injunction from:-
(a)denigrating, abusing or belittling the other party or their faith or beliefs in the presence or hearing of the children (or any of them) or allowing any other person to do so;
(b)using the children (or any of them) as a mechanism to pass messages to the other parent;
(c)physically disciplining the children (or any of them)
(d)discussing any allegations or evidence in any Court proceedings with the children (or any of them) or in their presence; and,
(e)permitting the children (or any of them) to view or read any documents of and associated with any Court proceedings.
22.In the case of any dispute between the parties after the making of these orders regarding their implementation and/or interpretation, the parents shall attend a Family Dispute resolution Practitioner to endeavour to resolve the issue.
23.The Father is to facilitate the children attending upon their current counsellor Ms D at E Counselling at such times and for such periods as is recommended.
24.The parties do all acts and things necessary to enrol the children X and Y at B School from 2023 and Z at Suburb F Kindergarten in 2023 and the children attend at those schools.
25.The mother and the father escort the children on any induction tours for B School together and likewise accompany Z to any induction appointment with her kindergarten.
26.The mother and the father be and are each hereby entitled to attend the first day of school for X and Y at B School and divide their time between the girls’ classrooms or activities as may be agreed, or in the absence of agreement, the father accompany Y and the mother accompany X.
27.The independent children’s lawyer provide a copy of this Order and a copy of the family report of Ms G dated 9 September 2022, and a copy of my reasons to Ms D or such other counsellor upon whom the children attend.
28.The Order requesting the appointment of an independent children’s lawyer is to be discharged.
29.The father be responsible for providing the Proper Officer of any school or educational institution at which the children (or either of them) are enrolled to attend with a copy of this Order.
IT IS DIRECTED:
30.That the minute of consent orders as amended with tracked changes be marked Exhibit “A” and remain on the Court file.
31.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy be provided to the parties.
IT IS FURTHER ORDERED THAT:
32.The parenting application be struck out with the right of reinstatement prior to 24 April 2023.
33.There be liberty to the party seeking reinstatement, for the purpose of this Order being discharged in favour of alternative parenting orders, to seek that the matter be transferred from Division 2 to Division 1 and set down in my list as soon as possible for directions without any intervening Registrar event. The parties for seeking reinstatement communicate with my chambers in writing drawing attention to this Order and the facts that reinstatement is sought.
34.The parties seeking reinstatement of the parenting application present this Order together with an Application in a Case seeking that the said application be reinstated to the coordinating registrar for the Melbourne Registry - [...@...] - and my Chambers – [...@...].
35.Pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.
AND THE COURT NOTES:
A.That there has been no hearing of the parenting application on the merits.
B.The Father shall purchase school uniforms for the children for B School for enrolment in 2023.
C.That the week-about time is continued following the periods for which paragraph 10 applies.
D.The independent children’s lawyer is supportive of the mother continuing ongoing therapy.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kerger & Kerger has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Ex temporeBENNETT J:
This matter comes before me on the first day of what was scheduled to be the defended final hearing of competing parenting applications concerning the daughters of the parties, X who is eight, Y who is six and Z who is four.
The parties, all of whom are represented by counsel as well as the independent children's lawyer being represented by counsel, have reached a resolution of the matter. It is necessary, however, to understand the context within which the resolution was reached.
It was said by the mother that her solicitor could not retain counsel to appear on behalf of the mother for the hearing of this matter and that it was therefore necessary for the matter to be adjourned. This is a fairly extraordinary position. Ms Dwyer of counsel accepted the brief to appear yesterday for a mention of the matter and to secure the adjournment. Fortunately, agreement broke out, and it wasn’t necessary to adjourn the trial; however, had it been necessary for me to adjourn the trial, I would have done so for the minimum possible period, which would have been approximately two weeks, and the matter would then have proceeded with or without counsel for the parties.
Another important contextual matter is that this is the second set of final parenting orders which have been made in relation to X, Y and Z. Previous orders provided for a gradual increase of the time which the children would spend in the care of the father. As the maximum time that the children would spend with the father approached, there were allegations by the mother of inappropriate sexual conduct by the father towards the children or one of them, and the mother unilaterally ceased to comply with the parenting orders. There have been extensive investigations by the Department of Families, Fairness and Housing (“DFFH”) and a further report by a child court expert who is in the permanent employ of the court. The notifications have not been substantiated.
The mother changed lawyers approximately six weeks ago consequent upon the practitioner who had care and conduct of the mother’s file retiring from practice.
In the final hearing, the mother has filed material which states that she no longer holds the view that the children have been subjected to inappropriate sexual conduct by the father or that any have been abused by him. It is a significant turnaround in the mother’s case. In fact, it is a 180 degree turnaround. This evidence was put on in the proceedings after the report by the Court Child Expert in which it was recommended that the father have something approximate to five or seven out of 14 days with the children. The father sought a change of residence based on the report.
I do not impugn the mother’s case in any way, but it must be acknowledged that there is a risk of a settlement becoming unstuck if it is entered into by the mother partly or solely to avoid an unfavourable result which was likely to be imposed. This is to be distinguished from a resolution that is based on a genuine change of heart. I will permit the matter to come back into my list in the event that there is a breakdown in the parenting arrangements provided for in the orders. This is unusual and contrary to usual case management practice. However, it is a mechanism which I am satisfied is required to protect the best interests of the children.
Finally, I note that the orders as made today are fully supported by the independent children's lawyer and is not contrary to anything in the material before the court on subpoena from DFFH.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 25 November 2022. Associate:
Dated: 7 November 2022
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