LAILA & LAILA

[2014] FamCA 628

FAMILY COURT OF AUSTRALIA

LAILA & LAILA [2014] FamCA 628

FAMILY LAW – CHILDREN – Whether to make final parenting orders in circumstances where the child is almost 16 years of age – Where the parties are able to reach final parenting orders by consent

Family Law Act 1975 (Cth)

APPLICANT: Mr Laila

RESPONDENT:	Ms Laila
INDEPENDENT CHILDREN’S LAWYER:	Mr Damian Carter

FILE NUMBER: BRC 6930 of 2011

DATE DELIVERED: 31 July 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 31 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Salvos Legal

FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Carter Farquar Lawyers

ORDERS

IT IS ORDERED BY CONSENT THAT:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT:

1. The Court requests that the Australian Federal Police remove the name of the child, B (female) born … 1998, from the Family Law Watch List at all points of international arrivals and departures in Australia.

1. All extant applications be otherwise dismissed and removed from the pending cases list.

1. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS DIRECTED THAT:

1. The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

1. That all previous Orders made by this Honourable Court be discharged.

Residence

1. That the child, B (the Child) (DOB: 27/09/1998) live with the Father.

Parental Responsibility

1. The parents are to have sole parental responsibility for the day to day care welfare and development of the child at all times when the child is in the care of each parent

2. That the Father and Mother have equal shared parental responsibility for the long term care, welfare and development of the Child.

Time with the parents

1. That the Child shall spend time with the Mother at all such reasonable times as may be mutually agreed upon by the Child and the Mother. However, failing agreement, the Child shall spend time with the Mother as follows:

   a.Every second weekend from Friday after school to before school on Monday commencing 1 August 2014;

   b.If Monday is a public holiday, then the Mother is at liberty to have the Child until Tuesday before school recommences;

   c.each alternate week on a Wednesday from after school until the commencement of school Thursday morning commencing 6 August 2014

   d.On Mother’s Day, from 4.00pm Saturday before Mother’s Day until 5.00pm Mother’s Day;

   e.On the Mother’s birthday (…) from 4.00pm 25 June to 5.00pm 26 June. If the Mother’s birthday falls on a school day then the Mother shall spend time with the Child from after school the day before the Mother’s birthday until the beginning of school on the Mother’s birthday;

   f.In the first half of all school holidays in 2015 and each alternate year thereafter and for the second half of all school holidays in the year 2014 and each alternate year thereafter;

   g.On the Child’s birthday from 9.00am until 3.00pm, or if it is a school day, from after school until 7.30pm of the same day;

   h.From 4.00pm Christmas Eve to 4.00pm Christmas Day in even numbered years;

   i.From 4.00pm Christmas Day to 4.00pm Boxing Day in odd numbered years.

   j.In the event the time in Order 5(a) coincides with Father’s day then the child shall be returned to the father at 4.00 pm on the Saturday immediately prior to Father’s Day

Telephone communication

1. The Child is at liberty to telephone the mother at any time she wishes and the mother shall telephone the Child at any time before 8.30pm during the school week and anytime from 9.00am to 9.00pm on the weekend and/or holidays.

2. That the parent with whom the Child is living at any time shall facilitate any request by the Child to telephone the other parent.

3. That the Father and Mother shall supply their home addresses and contact telephone numbers to the other parent. If either parent’s details is changed then that parent is to notify the other parent within 7 days of the change of those details. All other arrangements in respect of changeovers shall remain in place.

Medical matters

1. The Father and Mother shall furnish to the other parent, all contact details of all treating health professionals and shall keep the other parent informed of any changes to those contact details.

10.That the parties will:

a.   Keep each other informed of the names and addresses of any treating medical or other health practitioners who treat the children from time to time;

b.   Inform each other as soon as reasonably possible of any serious medical condition, significant health issue or illness suffered by the child.

11.This order constitutes authority for either parent to communicate with the children’s medical or other health practitioners and to request from them such information relating to the children’s health and or treatment as that parent may desire and at that parent’s cost.

12.Each parent shall follow the directions and recommendations of any treating health professional in respect of the Child while the Child is in that parent’s care.

Notifications

13.Should either parent wish to travel with the Child to a place that is greater than 400 kilometres from that parent’s residence, then that parent is to give clear notice of the intended travel at least 14 days prior to the intended travel. Each parent is to provide to the other parent with:

a.the details of the intended travel, including dates of travel, locations and details of where the Child will be staying; and

b.contact telephone numbers for any places where the Child will be staying (if available).

14.Neither parent shall travel overseas with the Child without the other’s prior written consent and each party shall provide to the other a detailed itinerary of any agreed travel, including telephone contact numbers where the parent and child can be contacted each day and copies of all relevant air tickets not less than 14 days prior to that travel.

Non-denigration

15.Neither parent shall denigrate the other in the presence of nor hearing of the Child, and each parent shall use his or her best endeavours to ensure that other persons do not denigrate the other parent in the presence nor hearing of the Child.

Authorities

16.This order constitutes an ongoing authority to the child’s school(s) and extracurricular organisations to provide to each of the parents copies of school reports and other documents or correspondence mailed to any other parent of a child attending that school or organisation and will include all formal notifications relating to the child concerning disciplinary matters or action and or changes or decisions relating to the child’s academic progress.

17.This order constitutes an ongoing authority to the child’s school and extracurricular organisations for either of the parents to attend at the school or organisation if requested or invited to attend to discuss the child’s progress at any time including but not limited to parent/teacher interviews/evenings.

Other matters

18.That the parents participate in interpreter-assisted Family Dispute Resolution as needed.

19.That the Child participate in post-decision meeting with the Independent Children’s Lawyer, the Child’s parents, interpreters and the Family Consultant for the purpose of confirming that all parties understand the orders made by the Court.

20.That within the first 6 months of 2015 and 2016 the Child and the parents attend a Child-inclusive Family Dispute Resolution session for the purpose of discussing and modifying care arrangements if needed.

21.That the parents meet with the Guidance Counsellor at the Child’s school in order to address the Child’s academic and other school-related needs, schooling and career options and pathways.

22.That the parents not use corporal punishment to discipline the Child.

Changeover

23.Changeover shall occur at the child’s school when the child is attending school. On non-school days or where the child is not attending school, changeover shall occur, unless agreed in writing, at 5.00pm at the Suburb C Central Food Court.

NOTATION

These Orders have been read by the Mother and translated and interpreted to her by Ms D of E Language Services and dated this 31st day of July 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Laila & Laila 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 BRISBANE

FILE NUMBER: BRC 6930 of 2011

Mr Laila

Applicant

And

Ms Laila

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings concern the child, B born in 1998, who is thus soon to turn 16 years of age.

2. The parties to these parenting proceedings within the meaning of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are the father of the child, Mr Laila, and the mother of the child, Ms Laila. The interests of the child are independently represented in these proceedings pursuant to s 68L of the Act by an Independent Children’s Lawyer appointed for that purpose.

3. The mother is Country F and a Country F interpreter has been available to the mother during the course of this morning, today being the day set for a two day trial.

4. The father is Country G and he has had available to him, as I understand it, a Country G interpreter by telephone.

5. The father is represented in these proceedings by a lawyer, whilst the mother is not.  Her representation having recently ceased when her solicitor filed a Notice of Ceasing to Act on 24 July 2014.  It is fair to say that this matter has a long history and I do not intend to recount that history in circumstances where the parties, with the assistance of the Independent Children’s Lawyer, have been able to reach consent orders on a final basis with respect to the parenting orders to be made for the child, in her best interests.

6. Suffice to note that there is a long history of litigation concerning the case, including a trial that was held over three days before Jordan J, commencing 10 May 2004.  Since then, there has been further litigation, first in then Federal Magistrates Court and then transferred to this Court.  The relevance of this is particularly that there have been various expert interventions in the forms of an assessment of the child by Mr H, psychologist, and his report is dated 10 May 2012, as well as assessments made by the family report writer, Mr I.

7. Mr I updated a family report on 19 May 2014, having prepared reports on 4 April 2012 and 24 July 2013.  The issues in the case are, in my respectful view, adequately summarised by Mr I in his most recent report, which at paragraph 63 expresses Mr I’s recommendations concerning the parenting orders that might be made in the child’s best interests.  I should also note in passing that the evidence includes evidence from one Ms J via an email dated 25 November 2013 concerning her role as a counsellor in an earlier attempt to resolve the issues between the parents in the child’s best interests.

8. As raised by Mr McGregor of counsel for the Independent Children’s Lawyer, there is sometimes hesitation in whether the Court should or should not make parenting orders with respect to a child who has reached the age and level of development of the child.  As earlier noted, she is a couple of months away from achieving her 16^th birthday.  However, I am satisfied on Mr I’s report and recommendations that it would be in the interests of the child that final parenting orders be made.  That is particularly so in circumstances where the parents have been able to reach agreement with the assistance of the Independent Children’s Lawyer in the orders that ought be made.

9. It is patently clear that the most significant challenge the child has faced in her development to date would seem to be the conflict between her parents.  It would seem that the child will support parenting arrangements that are in turn supported by both of her parents and in particular, her father.  Thus it is that the fact that orders are reached by consent removes the kinds of concerns the Court might otherwise have in imposing parenting orders on a child of the child’s age.  It is the case that her history includes some issues concerning diagnoses of her psychological health historically, and it would be clearly in the child’s interests for the conflict between her parents to now end.

10. Hopefully, the consent orders that the parents have now reached will effect that for her, in her best interests.  I am satisfied that the orders are in the child’s interests and I therefore make orders in terms of the draft minutes of orders that each of the parties have signed and are now initialled by me and placed with the file.

11. I record that the mother’s interpreter has confirmed to the Court her satisfaction that she has had sufficient time to explain the orders and translate the orders to the mother and the interpreter is satisfied that the mother gives her consent to those orders.

12. Further, Mr McGregor has explained to the Court that he spent some time with the mother throughout the course of this morning, leading to the final consent orders, explaining the contents of the drafts of those orders.  I therefore make those orders.

13. In addition, as discussed during exchanges this morning, formally order that the name of B be removed from the family law watch list.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 31 July 2014.

Associate: 

Date:  31 July 2014