FAMILY COURT OF AUSTRALIA
| KNIBBS & KNIBBS (NO. 2) | [2010] FamCA 455 |
| FAMILY LAW – CHILDREN – Application by independent children’s lawyer to reopen the evidence – Application made after parties had been notified that judgment is ready for delivery – Judgment delivered but orders made as interim rather than final orders pending assessment by the family consultant as to a specific new issue |
| Family Law Act 1975 (Cth) s69ZR |
| Marsden & Winch [2009] FamCAFC 152 Suell & Suell [2009] FamCA 55 |
| APPLICANT: | Ms Knibbs |
| RESPONDENT: | Mr Knibbs |
| FILE NUMBER: | BRC | 2169 | of | 2009 |
| DATE DELIVERED: | 28 May 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O’Reilly J |
| HEARING DATE: | 28 May 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr O’Meara |
| SOLICITOR FOR THE APPLICANT: | Mark Treherne & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Selfridge |
| SOLICITOR FOR THE RESPONDENT: | McMillan Kelly & Thomas Lawyers |
| THE INDEPENDENT CHILDREN’S LAWYER | Ms O’Neill Legal Aid Queensland |
ORDERS
IT IS ORDERED UNTIL FURTHER ORDER
Parental responsibility
The parties have equal shared parental responsibility for N born … April 1999 and S born… February 2003 (the children) in relation to the major long-term issues concerning them, including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.
In the exercise of their equal shared parental responsibility concerning the children in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.
If after consultation joint decisions are not able to be made as to an issue or issues the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve such issue or issues.
The parties each be responsible or the children’s day to day care while the children are with each of them.
Living arrangements and changeovers
The children live with each of the parties on the equal time week about basis including in relation to the March/April, June/July and September/October school holiday periods but not the Christmas school holiday periods.
In relation to the Christmas school holiday periods the children spend the first half in or commencing in even years and the second half in or commencing in odd years with the mother and the second half in or commencing in even years and the first half in or commencing in odd years with the father, with the first half to commence after school on the last school day of term 4, the second half to commence at 9.00am on the middle day of the Christmas school holiday period or if no middle day at 9.00am on the day following the midpoint and end on the morning of the first school day of the next school term
Changeover occur during school terms on…
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- Knibbs and Knibbs (No 2) [2010] FamCA 455
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- [2010] FamCA 455
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CaseChat Overview and Summary
The primary legal issues before the court were how to best promote the children's welfare and best interests, particularly in light of allegations of abuse. This involved determining the nature of parental responsibility, establishing a stable and consistent living arrangement, and implementing measures to ensure the children's safety and emotional well-being. The court also had to consider the implications of previous restraining orders made by Justice Murphy concerning the children's contact with medical practitioners, counsellors, departmental officers, and police in relation to alleged sexual abuse.
Justice O'Reilly made orders for equal shared parental responsibility, requiring the parties to consult and make genuine efforts to reach joint decisions on major long-term issues concerning the children. The children were ordered to live with each party on an equal time, week-about basis, with specific arrangements for school holidays and special days. The court also imposed strict communication protocols between the parties, prohibiting denigration and the discussion of adult issues or the substance of the proceedings in the children's presence. Crucially, the court continued existing restraining orders that prevented the parties from videotaping or audio-taping the children in relation to allegations of abuse, taking the children for assessments or counselling related to alleged abuse without leave, or taking the children for interviews by departmental officers or police concerning alleged abuse without leave. The court also ordered that the children have no contact with a Mr. R. The independent children's lawyer was directed to provide copies of the orders and reasons for judgment to the school principal and the Department of Community Services. Furthermore, the mother was ordered to ensure the children attend an appointment with a family consultant to explain the orders and assess the children's well-being. The proceedings were listed for further hearing.
Orders
Orders of the court
IT IS ORDERED UNTIL FURTHER ORDER
Parental responsibility
1.
The parties have equal shared parental responsibility for N born … April 1999 and S born… February 2003 (the children) in relation to the major long-term issues concerning them, including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.
2.
In the exercise of their equal shared parental responsibility concerning the children in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.
3.
If after consultation joint decisions are not able to be made as to an issue or issues the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve such issue or issues.
4.
The parties each be responsible or the children’s day to day care while the children are with each of them.
Living arrangements and changeovers
5.
The children live with each of the parties on the equal time week about basis including in relation to the March/April, June/July and September/October school holiday periods but not the Christmas school holiday periods.
6.
In relation to the Christmas school holiday periods the children spend the first half in or commencing in even years and the second half in or commencing in odd years with the mother and the second half in or commencing in even years and the first half in or commencing in odd years with the father, with the first half to commence after school on the last school day of term 4, the second half to commence at 9.00am on the middle day of the Christmas school holiday period or if no middle day at 9.00am on the day following the midpoint and end on the morning of the first school day of the next school term
7.
Changeover occur during school terms on Fridays after school at the children’s school, and except as provided in paragraph 6, at all other times at the parties’ homes with the party with whom the children have been spending time to deliver the children to the other party at the commencement of time and that party to deliver the children back at the conclusion of time.
Special days
8.
If the children are not already spending time with the mother on Mother’s Day, they spend time with her on that day from 9am until 5pm.
9.
If the children are not already spending time with the father on Father’s Day, they spend time with him on that day from 9am until 5pm.
10.
The children spend from 3pm on Christmas Day until 3pm on Boxing Day with the party with whom they are not spending the first half of each of the Christmas school holiday periods.
11.
The children (both) spend 2 hours on the birthday of either of the children with the party with whom they are not then spending overnight time, unless a child’s birthday is a changeover day, and if no other period be able to be agreed between the parties the 2 hours be from 4.00pm until 6.00pm.
Telephone communication
12.
The parties are to permit the children to have liberal telephone communication with the party with whom the children are not spending time, including on special days.
Parties’ ability to make other arrangements in writing
13.
Despite these orders, the parties may make other arrangements in relation to the children spending time with each of them, provided that such other arrangements are agreed in writing.
Parties’ communication
14.
All written communications between the parties concerning the children, including in relation to the parties’ equal shared parental responsibility, be by email or text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders.
15.
To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or SMS text message service number and give written communication of any change of such within 24 hours of any change.
Information
16.
The parties must notify each other as soon as practicable of any serious accident or injury concerning the children or either of them.
17.
The parties must notify each other of the names and addresses of any treating medical or health practitioner including any counsellor or psychologist the children attend and any hospital the children attend and authorise such to provide to the other at his/her request and expense any information or reports concerning the children provided that this order is sufficient authorisation to do so.
18.
The parties must authorise the children’s school to provide each other at his/her request and expense information concerning the children, copies of school reports concerning the children and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.
Attendance at the children’s school
19.
The parties may attend any school or extra curricular activities usually attended by parents such as parent teacher interviews, concerts, sports days and the like.
Physical discipline
20.
The parties must not us physical discipline in relation to the children nor permit any other person to do so.
Non denigration
21.
The parties must not denigrate each other or permit other persons to do so in the presence or hearing of the children.
Adult issues
22.
The parties must not discuss adult issues with or in the presence or hearing of the children and use their best endeavours to ensure that other persons do not do so.
Allegations in these proceedings
23.
The parties must not raise with the children the substance of the allegations in these proceedings.
Mr R
24.
The parties must ensure that the children do not come into contact with or have any communication with Mr R.
AND IT IS FURTHER ORDERED
25.
The independent children’s lawyer:
(a) provide a copy of these orders to Mr I, Principal, V State Primary School;
(b) provide a copy of the reasons for judgment of today and a copy of these orders to the Department of Community Services (Child Safety) in relation to the recent notification by the children’s school.
26.
The mother ensure that the children attend upon Mr P the family consultant at Level 3 Child Dispute Services Sir Harry Gibbs Commonwealth Law Courts Building Corner of North Quay and Tank Street Brisbane at 9.00am on Tuesday 1 June 2010 for Mr P to:
(a) explain to the children these orders concerning their living arrangements; and
(b) assess:
i. whether there has been deterioration in N’s presentation since the 2009 interviews;
ii. whether N appears to be suicidal or suffering from any psychological condition or trauma;
iii. whether N would benefit by counselling in relation to any matter and if so how often and by whom;
iv. whether otherwise it would be in the children’s best interests that I make as a final order the restraints made by the Honourable Justice Murphy on 17 July 2009 set out below.
AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER
27.
The restraints made by the Honourable Justice Murphy on 17 July 2009 by pars 4(d)-(f) continue namely:
4. That the parties shall be restrained from and an injunction issue restraining each from:
…
(d) Videotaping, or audio taping (including by telephone) the children where any issue relating to allegations of abuse at the hands of the father is referred to or discussed or permitting or encouraging any other person to do so
(e) Taking the children to any medical practitioner, counsellor or other professional for the purpose of assessments examination or counselling related to the alleged sexual abuse of the children, unless leave has been given by the court to participate in the counselling examination or treatment
(f) Taking the children for interview by a Departmental Officer at any Department of Communities (Child Safety) Office or by any police officer for the purpose of assessments examination or counselling related to the alleged sexual abuse of the children, unless leave has been given by the court to participate in the interview.
AND IT IS FURTHER ORDERED
28.
The independent children’s lawyer’s application in a case filed 27 May 2010 and the continuation of these proceedings be listed for further hearing at 2.15pm on Tuesday 15 June 2010 before the Honourable Justice O’Reilly.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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