Kernan and Cuddihy

[2007] FamCA 262

FAMILY COURT OF AUSTRALIA

KERNAN & CUDDIHY [2007] FamCA 262

FAMILY LAW - CHILDREN  - Consent Orders made following trialling of orders over several months.

APPLICANT: Mr Kernan

RESPONDENT: Ms Cuddihy

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 534 of 2002

DATE DELIVERED: 15 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 15 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Le Souef

SOLICITOR FOR THE APPLICANT: Le Souef Preston & Associates

COUNSEL FOR THE RESPONDENT: Ms Reale

SOLICITOR FOR THE RESPONDENT: Reale Lawyers

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms O'Connell

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Roberts Beckwith Partners

Orders

1. That all parenting orders be discharged.

2. That the mother and father share joint parental responsibility of the child of the relationship, a son born in March 2000.

3. That the said child live with the mother as follows:

   (a)each alternate weekend from the conclusion of school on Friday until 5pm on Sunday or otherwise as agreed;

   (b)from the conclusion of school each Tuesday until the commencement of school on the following Wednesday morning to take place during the school term;

   (c)for half of all school holiday periods as agreed;

   (d)for Mother’s Day from 9am to 5pm

   (e)from 8pm Christmas Eve until 3pm Christmas Day in 2008 and each alternate year thereafter;

   (f)from 9am until 6pm on Christmas Eve and from 3pm Christmas Day to 5pm on Boxing Day in 2007 and each alternate year thereafter.

   (g)on the child's birthday in 2007 and each alternate year as agreed; and

   (h)any other times as may be agreed

4. That the said child live with the father as follows:

   (a)       On Father’s Day from 9am to 5pm.

   (b)From 6pm Christmas Eve until 3pm Christmas Day in 2007 and alternate years and from 9am until 8pm on Christmas Eve and from 3pm on Christmas Day until 5pm on Boxing Day in 2008 and each alternate year thereafter.

   (c)As agreed on the child’s birthday in 2008 and each alternate year thereafter.

   (d)       At all other times

5. That the child will communicate by telephone text message or email with each parent on a liberal basis whilst in the care of either parent.

6. That neither party be drug affected when the child is in their respective care.

7. That the parties attend upon communicate with such Care Manager/Advisor to receive and follow advice as to the child's care management lifestyle and discipline issues so that a consistent care approach is maintained in relation to the child.

8. That the parties immediately advise each other in relation to any medical concerns with the child.

9. That the parties continue to communicate with each other and the school that the child attends through the use of a Communications Book and to the child’s school meeting, developmental assessments, medical appraisals, medical treatment and medical condition.

10. That the parties will follow all reasonable directions of the child’s medical practitioner/s, counsellor, and other professionals involved in the management of the child.

11. That the parties be actively involved in the child’s schooling and each be entitled to receive copies of newsletters school reports, photographs any other notices usually sent to parents.

12. That the child’s medication and medical apparatus shall accompany him at all times (as need be).

13. That the mother is hereby restrained from taking the child into the presence of Mr T.

14. That pursuant to Section 62B and 65DA (2) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these Orders.

15. That all extant applications be otherwise dismissed.

NOTE:

1. That for the purposes of paragraph 7 the Childs Care manager is Mr C and of A Care or such other person so approved.

2. That the parties’ current arrangements with respect to paragraphs 3(c) will the incorporate weekends pursuant to paragraphs 3(a) and will be alternating blocks of up to four nights each.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 534  of 2002

Mr Kernan

Applicant

And

Ms Cuddihy

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me pursuant to a number of orders that were made in May 2006.  The parties have worked extremely hard in packaging a resolution of what could have been quite a severe piece of litigation in this court.  They are to be congratulated in having the dignity and the respect in undertaking this course through the assistance of their professional advisors.

2. The dispute involved a child, who was born in March 2000.  The child is seven.  The parties have resolved the issue at large between them despite what were clearly unhappy differences following the cessation of their union in 2001, having commenced in 1997.

3. I have had explained to me by Mr Le Souef the basis of the orders and Ms Reale who appears for the respondent mother drew no dissent, but provided helpful additional information concerning the arrangements between the parties.  I have also had explained to me the severe health problems that the child has suffered.  The Independent Children's Lawyer, represented by Ms O'Connell, supports the consent orders.

4. The parties are really masters and mistresses of these orders.  They are to be congratulated, as I said, in coming to this consensual arrangement.  I certainly wish them the best in the future.

5. I have been presented with the Minutes of Final Consent Orders which I have carefully considered.  I propose to make those orders.  The principles governing my discretion in this matter, as set out in the Family Law Amendment (Shared Parental Responsibility) Act 2006.

6. In deciding whether to make the parenting orders, I must regard the best interests of the child as the paramount consideration.  I am to take into account both “primary” and “additional” considerations.  The primary consideration  of considerable importance in these proceedings is the benefit to the child of having a “meaningful relationship” with both of his parents.  These orders provide for just that.  This has been an arms length negotiation between the parties and I will make the orders requested which are set out in a Minute which I mark Exhibit “A”.  They are, in my view, in the child’s best interests.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  28 March 2007.

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