Krum and Krum

[2011] FamCA 1015

FAMILY COURT OF AUSTRALIA

KRUM & KRUM [2011] FamCA 1015

FAMILY LAW – SHARED PARENTING – consent orders made – equal shared parental responsibility – children live with mother – mother permitted to relocate overseas – children spend time with father – each parent entitled to communicate with children when they are in the care of the other parent

Family Law Act 1975 (Cth)
APPLICANT:	Ms Krum

RESPONDENT: Mr Krum

INDEPENDENT CHILDREN’S LAWYER: Ms Messner

FILE NUMBER: PAC 4930 of 2010

DATE DELIVERED: 13 October 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Loughnan J

HEARING DATE: 13 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Etheringtons Solicitors

COUNSEL FOR THE RESPONDENT: Mr Cooke

SOLICITOR FOR THE RESPONDENT: Atkinson Vinden

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CBD Legal

Orders

1. The Court noted the Notations in terms of paragraphs A, B and C of the document titled Consent Orders marked Exhibit A .

1. The Court noted the wishes of the parties in terms of paragraph 7(c) of Exhibit  A.

1. That otherwise orders are made in terms of Exhibit A.

1. That the parents equally bear the costs of the Independent Children's Lawyer assessed in the sum of $10,049.00 and unless the parties agree to the contrary payment is to be made by the parties to Legal Aid New South Wales within 21 days after 6 December 2011.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Krum and Krum has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4930 of 2010

Ms Krum

Applicant

And

Mr Krum

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children, B and C.  The matter has been on foot for some considerable time. It came through the Federal Magistrates Court and, in very short order, the parties and that Court cooperated in a hearing being undertaken and a judgment issued very quickly.  The judgment, I think, favoured the retention of the children in Australia, the central issue in the case being the children relocating to Country D with their mother. The judgment did not support that relocation. There was an appeal and the judgment was set aside and the matter remitted for rehearing, again, through came the Federal Magistrates Court. The proceedings were transferred to this Court. The matter was listed for hearing by me over five days starting on Monday.

2. In a sense this was a simple case, in that it was about one option or the other.  The only significant evidence was that of the parties and a single expert.  At the close of the mother’s case and after the father’s cross-examination, I was told that the parties had resolved the central issue and they have spent today hammering out the remaining issues. The agreement is that the children will relocate to Country D.

3. It can seem bittersweet to wait until the final hearing and then have the dispute resolve. The thing that is achieved by a settlement is that the parties retake responsibility for their arrangements. I do not have the knowledge or the interest in crafting orders that are in the form of these orders, for example, because I do not know the details of the Country D school holidays; about what travel is possible; where the financial burden should lie; and how the parties should deal with the children’s wishes in the future, for example.

4. This was an all or nothing case and you can see – I don’t mean to be patronising about it – but you can see why the parties had such a problem.  At the point of time when they agreed to do something about separating, at that same time, they had to make a decision as to whether the children would move halfway around the world or not. You can readily understand why that would be an enormous decision, particularly, for the father as it transpires. There is no more generous thing, in my experience, than a parent metaphorically stepping back.

5. In some ways the lawyers and I made light of the issues during the course of the trial because the joy of this case is that there are two nice, capable parents and two happy, lovely children. So often we deal with children who are in terrible circumstances and with parents who should not have children. Notwithstanding that this was a nice case for the court to deal with, you can understand that at the point of the breakdown of the parent’s relationship, certain fears could well up in relation to the consequences of a step like this.

6. Going forward the entire responsibility falls to the mother. Well, perhaps not all of the responsibility but 80 per cent of it. It will largely be her responsibility to make the new arrangement work because she will live most of the time with the children and will be faced with, “Mum, I don’t want to go to the father; I would rather spend time with X or Y or whatever”. Under those circumstances the sincerity of assurances that the mother has given in the case will be tested over the next four years.

7. Orders are inflexible things and alone they don’t usually work terribly well.  They don’t fit into the lives of young children and busy adults. If the parents come to a point where they have a shared understanding that is different to the orders, provided they ensure that the new arrangement is recorded and understood, they should not hesitate to put in place arrangements that better meet their needs and those of the children. I would not have imposed an order that required parents to follow the wishes of the children in the future, for example. It has pleased the parties to incorporate that in the orders but they might change their minds in the future. The reason why parents and Courts have the final say is that children are not always equipped to make good decisions about important issues.

8. By reaching the agreement they have the parents have taken back responsibility for these children. I would encourage them to try and maintain that position.  The best possible outcome for these children will come from having two involved parents. Sadly, we see many cases where the children of a broken family are back at Court, decade after decade, having learnt about the lack of cooperative parenting in a separated household from their own parents. In those circumstances children yearn for a missing parent and that causes devastation in their lives.

9. Therefore I compliment the parents on the new arrangements, particularly the father, in the circumstances and wish them both all the very best.

10. By consent, I make notations in terms of paragraphs (A), (B) and (C) of the document and I note the wishes of the parties in terms of paragraph 7(c) and otherwise I make orders in accordance with the document. 

11. There is an application for the costs of the independent children’s lawyer. It is an inarguable application. The parties have the resources to meet the costs. I appreciate that they have been engaged in a very expensive course of litigation but, ultimately, that is not the responsibility of the taxpayer and the public resources represented by the ICL’s costs are finite.  The parties should pay the costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 13 October 2011.

Associate:

Date: July 2012