Kinsley and Brye

[2007] FamCA 1588

FAMILY COURT OF AUSTRALIA

KINSLEY & BRYE [2007] FamCA 1588

FAMILY LAW – CHILDREN – Parenting orders made by consent – Comments on obligations of parents and rights of children pursuant to provisions of s 60B of the Family Law Act 1975 (Cth)

Family Law Act 1975 (Cth)

APPLICANT: Mr Kinsley

RESPONDENT: Ms Brye

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1287 of 2004

DATE DELIVERED: 20 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 20 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kanarev

SOLICITOR FOR THE APPLICANT: Carmel M Prowse

COUNSEL FOR THE RESPONDENT: Mr Melilli

SOLICITOR FOR THE RESPONDENT: Martin Irwin & Richards

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Williams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Marshalls & Dent

Orders

1. That all previous orders be discharged.

2. That the Father and the Mother retain equal shared parental responsibility for the child of the relationship … born … November 2002.

3. That the child  live with the Mother.

4. That the child spend time with and communicate with the Father as follows:-

   4.1From 5.30 pm 7.12.07 to 7.00 pm 15.12.07.

   4.2From 3.30pm 31.12.07 to 7.00pm 9.1.08.

   4.3From 3.30pm 17.1.08 to 7.00pm 26.1.08.

   4.4Commencing 2008 during school terms:-

   4.4.1From the 3rd weekend of the commencement of term 1 from 5.30pm Friday to 7.00pm Sunday provided that on one weekend in each school term, being the 2^nd weekend of contact, such time be extended to 5.00pm Monday.

   4.5Commencing  2008 during school holidays:-

   4.5.1For a period of 10 days during all school term holidays at times to be agreed and in default of agreement, the first 10 days in even numbered years and the last 10 days in odd numbered years.

   4.5.2for 2 non-consecutive periods of 10 days each during the long summer vacation with one such period to include Christmas Day in 2008 and each alternate year thereafter.

   4.6At such other times as may be agreed.

   4.7That each party be permitted to telephone the child on each Wednesday and Sunday at 7.00pm when the child is not in their respective care.

5. That commencing 2009 when the child commences school, the provisions of paragraph 4.4.1, providing for one weekend per term to be extended to 5.00pm Monday, be discharged and in lieu thereof the time spent with the child be extended to 5.00pm Monday in the event that a scheduled weekend of contact were to coincide with a long weekend.

6. That all contact changeover take place at N in the far North West of Victoria at the commencement and conclusion of all periods of contact.

7. That the Mother do all things to enrol the child in full time 4 year old kindergarten in 2008 (4 days per week) and confirm the enrolment within 14 days to the Father.

8. That all weekend contact be suspended during school term holidays and long summer holidays.

9. That the Mother do all things to authorise the child’s kindergarten and school to provide to the Father (at his expense) all the usual documents and notices and reports provided to parents including photographs.

10. That each party keep the other advised of any illness affecting the child and provide details to the other of any medication required to be administered and immediately notify the other of any serious injury that may be suffered by the child.

11. Each party be and is hereby restrained from:-

    11.1Denigrating the other to or in the presence or hearing of the child.

    11.2Discussing these proceedings with or in the presence or hearing of the child.

12. That the Mother not consume alcohol to excess.

13. That the Mother comply with all directions from any health professional she attends upon and authorise her health care and medical practitioners to advise the Father if she is admitted as an inpatient to any hospital.

14. All applications be otherwise dismissed.

15. That the order for the appointment of an Independent Children’s Lawyer be discharged.

16. Pursuant to s.65DA(2) and s. 62B 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 the 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.

17. Certify for Counsel.

AND THE COURT NOTES

A.The Mother shall provide the Father with a landline telephone number when she has one connected.

B.The Father consents to these Order on the basis that he currently resides in M in Western Victoria and reserves his rights to seek more time with the child were he to relocate in future to the environs of far North West Victoria.

C.The Mother contends that she does not bring the child into contact with Mr. F save for those occasions when he attends to collect his child from the Mother.

D.The Mother and Father are not to smoke cigarettes in the confines of a house or any motor car where the child is in attendance.

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLF 1287  of 2004

MR KINSEY  

Applicant

And

MS BRYE  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me in the regional sittings of the Family Court of Australia at Mildura.  Mr Kanarev appears for the applicant father, Mr Melilli for the respondent mother, and Mr Williams for the Independent Children's Lawyer.

2. The matter was first mentioned on Monday 12 November 2007 at the commencement of the circuit sittings.  It has now been negotiated at arms length in a contested situation and the parties have, much to their credit, resolved the dispute with Minutes of Consent Orders, which I mark Exhibit “A”.

3. The issue concerns a little boy, who was born in November 2002.  He is 5 years of age.  I have had explained to me the rationale for the proposed orders by counsel and what I propose to direct, so that there can be no mistake, is that a transcript of the submissions delivered this day be made and placed on the court file.  Should the matter ever return to court, there can thus be no dispute as to what occurred this day.

4. The father lives in M, Western Victoria, which I am told is approximately a four-hour drive from the environs of far North West Victoria. What is clear to me from the construction of these orders and the submissions that I have heard this day, is that the child is indeed a lucky little boy who clearly has two parents that love and care for him.  It is plain that one can have difficulties from time to time, but that does not mean to say those difficulties are indelible and mark the future without redemption.

5. In my view the orders are very wise. They are dignified. They prescribe that the father will spend time with his son and it is noted that, in the event that he relocates to the environs of far North West Victoria, he will seek additional time. For the assistance of the parties, I indicate that this court works under the umbrella of very important objects and principles concerning children, which are embodied in section 60B of the Family Law Act 1975 (as amended).  What it simply means is that the child has a right to know and be cared for by both of his parents and that he has a right to spend time and communicate on a regular basis with both of them and other people significant to their care.  For example, grandparents, uncles, aunts, and the like.

6. A further significant principle is that both the mother and the father in this case, jointly share duties.  They jointly share responsibilities too, concerning the general care, welfare and development of the child, and that they should, where they can, agree about his future parenting. 

7. I would ask that the parties regard these orders as the parameters within which they will operate in the best interests of the child into the future.  There will be variations, necessarily so, to these orders that may arise from circumstances unforeseen at this particular stage.  For example, there might be some particular important social family occasion that may require the child to be with one party when he is spending time with the other.  I would expect that there would be cooperation between both of the parties to accommodate such circumstances as they arise from time to time.  I repeat that these orders are the parameters within which the parties will work together for the best interests of the child into the future.

8. Accordingly, I make orders in terms of Exhibit “A”.  I direct the solicitors for the applicant father to engross the orders, and I note the removal of the proceedings from the Active Pending Cases List.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  17 January 2008