Langenauer & Langenauer
[2022] FedCFamC2F 388
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Langenauer & Langenauer [2022] FedCFamC2F 388
File number: MLC 11529 of 2018 Judgment of: JUDGE CARTER Date of judgment: 23 February 2022 Catchwords: FAMILY LAW – parenting – final consent orders save as to allocation of parental responsibility – presumption of equal shared parental responsibility – children exposed to family violence – lack of parental cooperation – ongoing parental acrimony – no meaningful communication since separation – best interests of the children – the mother have sole parental responsibility for medical and educational issues – matter proceeded by way of oral submissions – orders made. Legislation: Family Law Act 1975 (Cth) s 61DA Division: Division 2 Family Law Number of paragraphs: 10 Date of hearing: 23 February 2022 Place: Melbourne Counsel for the Applicant: Michael Pavone Solicitor for the Applicant: Heinz Law Counsel for the Respondent: Gerard Thistleton Solicitor for the Respondent: Marcou & Associates Solicitor for the Independent Children's Lawyer: Victoria Legal Aid Counsel for the Independent Children's Lawyer: David Goddard ORDERS
MLC 11529 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LANGENAUER
Applicant
AND: MR LANGENAUER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE CARTER
DATE OF ORDER:
23 FEBRUARY 2022
THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting Orders be discharged
THE COURT FURTHER ORDERS THAT:
2.The Mother have sole parental responsibility for the children of the relationship, Z born 2014, V born 2007, W born 2009, X born 2010 and Y born 2012 (collectively referred to as “the children”) in relation to their health and education and the parents otherwise have equal shared parental responsibility in respect of other long-term issues.
THE COURT FURTHER ORDERS BY CONSENT THAT:
3.The children live with the Mother.
4.The children as soon as practicable attend upon individual therapy with a child psychologist (the Psychologist) for such duration and at such frequency as may be recommended by the Psychologist, with the mother to provide the Psychologist involved with a copy of both Family Reports of Mr B (one dated 13 June 2019 and the second dated 23 February 2022) and a copy of these orders.
5.For the purposes of order 4 hereof:
(a)the mother shall, as soon as practicable, obtain a referral from the children’s General Practitioner(s) for the children to attend the Psychologist;
(b)the mother shall seek a mental health care plan for same;
(c)in the event that there is a gap between the Psychologist’s professional fees and the Medicare funding available under the Mental Health Care plan or in the event that there is no Medicare funding available for the child, the parents shall meet the costs of that child’s individual psychological therapy in equal shares.
6.The mother shall, as soon as practicable, provide a written authority to the Psychologist to contact the father (including the father’s contact details) should the children (or any of them):
(a)express a wish to the Psychologist that they would like to spend time or communicate with the father; and/or
(b)express a willingness to attend family therapy for the purposes of addressing any issues in that child’s relationship with the father
and the mother shall provide a copy of such authority to the father.
7.The father shall otherwise be restrained by injunction from making contact with the Psychologist except at the invitation of the Psychologist.
8.The children shall spend time with their Father as agreed between the parents in writing (including in respect of any conditions on such times) and the parents shall consider the children’s views and any recommendations of the Psychologist and (if appointed) any Family Therapist in this regard.
9.Following compliance with order 4 hereof, the parents shall arrange for the children to attend for family therapy with a family therapist as nominated by the Independent Children’s Lawyer for non-reportable therapy.
10.For the purposes of order 9 hereof, the costs of such family therapy shall be met as follows:
(a)the mother shall be responsible for and pay the costs of any individual sessions she has with the therapist;
(b)the father shall be responsible for and pay the costs of any individual sessions he has with the therapist; and
(c)the parents shall meet the costs of any sessions between the children and the therapist in equal shares.
11.The father shall be at liberty to communicate with the children by cards, letters and gifts to the address nominated by the mother at Christmas and on each of the children’s birthdays and in the event the children wish to acknowledge receipt of same, the mother shall facilitate this.
12.The mother shall facilitate the children communicating with the father by telephone in accordance with their wishes on a number nominated by the father.
13.Each parent is to notify the other of any change in their email within 7 days.
14.The mother shall provide to the father a written update by email as to the children’s health, education and welfare not less than once every 12 months.
15.In the event of any of the children suffering a medical emergency or serious injury, the mother shall advise the father of same as soon as practicable.
16.The mother shall authorize any school the children attend to provide school photos and reports to the father at his expense if any.
17.The mother shall notify the father in writing (including by email) as soon as practicable:
(a)of any change to the school that any of the children are enrolled in, including the details of any new school; and
(b)of any other long-term decision she is intending to make in respect of the children (including in relation to their education or health) and consider any written response the father may make to such notification (the father being expressly authorized to respond in writing).
18.In the event that the mother intends to travel overseas with the children or any of them she shall provide notice in writing to the father at least one calendar month prior to departure of:
(a)the proposed departure date;
(b)proposed return date; and
(c)a list of countries the child or children are visiting.
19.The father shall do all acts and things necessary, as quickly as practicable, to complete and return to the mother any application for a passport to enable the children to obtain a passport upon the provision of a passport application to the father by the mother.
20.In the event that the Father fails to respond to a request by the Mother to complete passport applications pursuant to Order 19 above within 28 days of provision of same, the Mother be at liberty to obtain an Australian passport for the children and in order to obtain the said passport the Mother be at liberty to:
(a)lodge an application with the Australian Passport Office without the Father’s involvement and/or consent; and
(b)supply a copy of these Orders to the Australian Passport Office.
21.Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth), the children be permitted to:
(a)have an Australian passport; and
(b)travel internationally,
without the consent of the Father.
22.The Independent Children’s Lawyer shall make arrangements to explain these orders to the children and the mother shall comply with any reasonable request of the Independent Children’s Lawyer to do so.
THE COURT FURTHER ORDERS THAT:
Independent Children’s Lawyer Discharged
23.The Independent Children’s Lawyer shall be discharged on 23 May 2022.
Section 68Q Provision
24.To the extent that there is any inconsistency between these orders and the Family Violence Protection Order made at the Magistrates’ Court in City C in 2018 (proceeding no …) then it is declared that pursuant to Section 68Q of the Family Law Act 1975 these orders prevail to the extent of any inconsistency.
Vacate Hearing
25.All extant applications be dismissed, and the final hearing be vacated.
Family Report Released
26.A copy of the Report by Mr B dated 23 February 2022 is released this day to:
(a)the parties and their legal representatives; and
(b)any Independent Children’s Lawyer in the proceedings.
27.Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:-
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference;
AND unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
28.Any party requiring the Family Consultant for cross-examination shall provide at least seven days notice in writing to the Family Consultant and each other party to the proceedings AND that in the event that notice is not given in accordance with this order and the Family Report has been released at least seven days before the hearing, the Report may be admitted into evidence without the Family Consultant being available to give evidence or for cross-examination, unless otherwise ordered by the trial Judge.
AND THE COURT NOTES THAT:
A.The mother intends to facilitate the children or any of them spending time with the father and/or communicating with the father and/or attending family therapy with the father in the event that they express a wish to do so or it is the recommendation of the Psychologist they do so.
B.The appointment of the Independent Children’s Lawyer is extended until 23 May 2022 for the purposes of allowing the Independent Children’s Lawyer to assist the parties to give effect to these orders.
C.In the event that the psychologists indicate to the parents that Family Therapy would not improve the children’s relationships with their father then the parents agree not to proceed with Family Therapy pursuant to order 9 hereof.
D.At the date on which a copy of the Report is provided to any of the authorities or agencies identified in sub-paragraphs 27 (a)-(d) above, the Report may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
E.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
F.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 27 herein, they shall write to the Chambers of Judge Carter seeking that the matter be listed on short notice for their objection to be heard.
G.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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Langenauer & Langenauer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
JUDGE CARTER
The parties very much to their credit have worked hard today with the assistance of the Independent Children’s Lawyer to resolve the vast majority of issues between them in relation to the parenting dispute regarding their five children V, W, X, Y, and Z who are aged 15, 12, 11, nine, and seven.
To the parties credit they appear to have been able to take on board the comments and observations made by Family Consultant Mr B and the Family Therapist Ms D. At this stage the father is not pursuing orders that the children spend time with him. Instead, the parties have agreed that they will engage their children with a child psychologist and at an appropriate time, will then engage in further family therapy. It is quite plain that those are the appropriate orders to be made in this unfortunately complex case.
The issue that is left for me to determine is how parental responsibility ought to be allocated. The mother says that she should have sole parental responsibility for the children. That is supported by the Independent Children’s Lawyer. The father seeks an order for equal shared parental responsibility. Quite sensibly, counsel for the father conceded that over the last few years, the mother has discharged her responsibilities and exercise of parental responsibility in an appropriate manner in relation to the health and education of the children.
However, I understand that the father has some nervousness about consenting to an order allocating the mother sole parental responsibility. As broadly as it is framed, that could allow the mother to relocate and change the children’s names. I am assured that the mother does not seek to do any of those things at this point. However, I appreciate that the father feels that an allocation of parental responsibility to the mother would further shut him out of the children’s lives. I can also understand that the father feels that he has been shut out of the children’s lives to a significant extent already.
With respect to section 61DA of the Family Law Act 1975 (Cth), I must apply a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them. However, that presumption does not apply if there are reasonable grounds to believe the parent is engaged in family violence or abuse of the children. That is very much an issue that is in dispute in this matter.
Alternatively, the presumption can be rebutted by evidence that it would not be in the children’s best interests if parental responsibility is shared. This is one of those matters in which it is abundantly clear that the parties do not have a sufficiently developed co-parenting relationship that would allow the parties to engage in any kind of constructive or respectful communication regarding the children. There is no trust or meaningful communication and as I understand it, there has been no communication at all between the parties since they separated some years ago.
I have read the material, and I have heard the submissions. I am satisfied that in reality there is no evidence that would suggest that the parties could genuinely liaise with one another to reach agreement regarding the children’s long-term needs. I am satisfied that the parties do not have the capacity to make genuine efforts to come to joint decisions about the major issues affecting the children. I have some concerns that if an order was made for the parties to continue to have equal shared parental responsibility that in fact, could expose the children to further conflict and disagreement between their parents.
In the circumstances, I am satisfied that it is not in the children’s best interests that there be an order for equal shared parental responsibility. As I have already indicated I am also satisfied that the mother has made decisions in the exercise of parental responsibility since the parties separated in a perfectly appropriate fashion. In my view, she should have sole parental responsibility. I appreciate that the father will feel very left out by that, and I again commend him for the forward thinking and child focused approach he is taking today.
In my view the allocation of parental responsibility ought to be limited to medical and education issues only for the reasons I have already outlined. At any rate the mother as I understand it, does not anticipate wanting to relocate, or wanting to change the children’s names or religion. The parenting decisions that will need to be made for the children will be in relation to medical and educational issues.
For the reasons I have set out, it is appropriate that the mother have sole parental responsibility.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carter. Associate:
Dated: 29 March 2022
0
0
0