Kingston and Kingston

[2010] FamCA 1221

FAMILY COURT OF AUSTRALIA

KINGSTON & KINGSTON [2010] FamCA 1221

FAMILY LAW – CONSENT ORDERS – Magellan

APPLICANT: Mr Kingston

RESPONDENT: Ms Kingston

INDEPENDENT CHILDREN’S LAWYER: Ms Lonergan

FILE NUMBER: MLC 5608 of 2010

DATE DELIVERED: 3 December 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 30 November 2010 and 1, 2 and 3 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Goldsworthy

SOLICITOR FOR THE APPLICANT: T.J. Mulvany & Co

COUNSEL FOR THE RESPONDENT: Mr MacFarlane

SOLICITOR FOR THE RESPONDENT: Harwood Andrews Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED BY CONSENT:

1. That all previous parenting orders be discharged.

2. That the mother and father have equal shared parental responsibility for the children K born … September 2000, H born … December 2001 and L born … February 2004.

3. That the children live with the mother.

4. That the children spend time with the father as follows:-

   a.From the conclusion of school Monday 13 December 2010 until 5:00PM Monday 20 December 2010.

   b.From 9:00PM Christmas Eve until 5:00PM on 13 January 2011.

   c.During school term from the conclusion of school Wednesday until the commencement of school Monday each alternate week.

   d.For one half of each of the term school holidays at times to be agreed. In default of agreement, the first half.

   e.For the long summer holidays commencing 2011/2012 and each alternate year thereafter from the conclusion of school on the last day of term until 9:00PM Christmas Eve and for a further period which when combined with his pre-Christmas period totals one half of the long summer holiday period, such period to conclude no later than 5:00PM 3 days prior to the commencement of the new school year.

   f.For the long summer holidays commencing 2012/2013 and each alternate year thereafter from 9:00PM Christmas Eve and concluding at 5:00PM on the date calculated to be one half of the long summer holidays.

   g.From the conclusion of school on the Friday preceding Fathers’ Day until the commencement of school on the Monday following Fathers’ Day.

   h.If Mothers’ Day falls on the father’s weekend time, the father’s time shall conclude from the commencement of school on the Friday preceding Mothers’ Day.

   i.At such other times as may be agreed by the mother and father in writing.

5. That the mother and father have telephone communication with the children when not in their respective care at any reasonable time.

6. That the mother and father each keep the other advised in writing at least 48 hours prior thereto of any change in residential address, landline number or mobile numbers, and email addresses.

7. a.      That the mother, her servants and agents be restrained from bringing any of the children into contact with Mr DY or permit any other person to do so.

   b.In the event that the criminal charges laid against Mr DY are withdrawn or result in an acquittal, paragraph 7.a. hereof shall be discharged on a day 12 months from the date of withdrawal or acquittal.

8. That the mother and father, their servants and agents be restrained from using physical force to discipline any of the children or permit any other person to do so.

9. That the mother and father ensure that the child H does not share a bedroom with the child L.

10. That the mother and father continue to use Dr D, Paediatrician, as H’s paediatrician and comply with his recommendations for therapy and treatment including but not limited to H’s autism, ADHD and sexualised behaviours.

11. That the mother and father continue to attend the Family Mediation Centre and follow all reasonable direction of that Centre including ensuring the children’s attendance at appointments and the involvement of the parents’ respective partners, Ms N and Mr OY.

12. That pursuant to Section 11F of the Family Law Act the mother and father and the children attend upon Ms B at 11:00AM on Monday 6 December 2010 and the children further attend upon Ms B no earlier than the middle of February 2011 for the purpose of assessing the progress of the children and making any recommendations in relation to support services, if any, required for the children.

13. That the mother and father be restrained from taking any of the children to Ms C subject to any direction of Ms B or Dr D.

14. That the mother and father, their servants and agents be restrained from denigrating the other and other members of the household and extended family.

15. That the mother and father advise the other as soon as practicable of any medical emergency of any of the children while in their respective care.

16. That the mother and father keep the other informed of any specialist medical appointments of any of the children and that both the mother and father be permitted to attend the appointments.

17. That the Independent Children’s Lawyer be discharged on 30 June 2011.

18. That the Independent Children’s Lawyer be permitted to forward a copy of these orders and the Family Report to;

    a.Ms B (orders only)

    b.The children’s Primary School

    c.The Family Mediation Centre

    d.Ms C

    e.The Department of Human Services

19. That all changeovers not occurring at the children’s school shall take place at the home of the parent who in to spend time with the children.

IT IS ORDERED:

1. That otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

2. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations that 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.

AND THE COURT NOTES:

A.That the mother and father agree that the rule in Rice v Asplund shall not be relied upon for the purpose of any application in relation to 7.a. and b. hereof.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5608 of 2010

MR KINGSTON

Applicant

And

MS KINGSTON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have been asked to make final orders in relation to the three children, K, H and L, and have done so in the minutes of orders which were proposed by the parties on the fourth day of the hearing. 

2. All parties agree that the children will live primarily with the mother and spend regular time with the father.  The parties have been significantly assisted by counsel and by the independent children’s lawyer, whose participation was particularly helpful in the proceedings. 

3. The orders are silent as to what will occur over the next 72 hours.  The paragraph 2 - 3 of the orders provide that the children will live with the mother, and that is the arrangement into the future.  In fact, they will spend this weekend in the care of the father but oblivious to the fact that the proceedings have been resolved by consent between their parents.  The children will be brought to the Court at Level 5 at not later than 10.45 am on Monday for the purpose of the orders being explained to the children by Ms B or such other family consultant as is appointed by the Director of Child Dispute Services or her nominee.  The children will be placed in the child minding section for the purpose of being seen by the family consultant and ultimately be released to the mother. 

4. The parties reached this resolution before the evidence was completed or the mother’s case even commenced.  That is their choice.  I have heard the father give evidence and part of the evidence of his partner, Ms N.  I have not heard the evidence of the mother or her partner or the other experts, but I have read the material thoroughly.  On the basis of the evidence before me, I am satisfied that the children’s best interests are catered for by the orders.  I am also satisfied that the risks which have been identified by the parties in relation to physical or emotional or sexual abuse of the children are appropriately catered for by the orders.  That is, there are no protective provisions in relation to the mother’s partner but there are protective provisions in relation to Mr DY who is the father of the mother’s partner.

5. The father will continue to reside in the proximity of his current residence, and he is currently earning a salary of –

RECORDED   :   NOT TRANSCRIBED

$65,000 base salary, or $70,000 with certain benefits.  He works shift work.  His evidence is that that may alter, and he will be employed in the IT industry at a lesser income of approximately $60,000 but with an acknowledgement that his income-earning capacity is that which he currently has.  

1. I congratulate the parties on having reached an agreement in a difficult case.  I agree with Mr MacFarlane of counsel that the parties appear to have come a long way in doing so, and I can only say that their children will benefit from it. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 December 2010.

Associate: 

Date:  14 January 2011