Mackillop and Mackillop

[2007] FamCA 851

FAMILY COURT OF AUSTRALIA

MACKILLOP & MACKILLOP [2007] FamCA 851

FAMILY LAW - CHILDREN – Defended Hearing compromised.  Issues included relocation and child safety.  Consent orders made after two days of negotiation.

APPLICANT: Mr Mackillop

RESPONDENT: Ms Mackillop

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1948 of 2005

DATE DELIVERED: 14 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 14 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Wilson

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Mr Fronistas

SOLICITOR FOR THE RESPONDENT: Kyrou Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr C Arnold

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Coadys

Orders

1. That all previous parenting orders be discharged.

2. That the parties have equal shared parental responsibility for long term decisions concerning the child … born … October 2001 ("the child").

3. That the child live with the husband.

4. That the parties have sole responsibility for day to day decisions concerning the child when he is in their care.

5. That the husband be permitted to relocate permanently with the child to Northern Victoria at any time after the end of the current school year.

6. That the wife forthwith undergo and satisfactorily complete a Supported Accommodation Program at the L Addictions Recovery Centre to the approval of the Director or Program Manager and upon such completion forthwith:

   6.1       advise the husband of having done so; and

   6.2 provide to the husband a certificate or letter from that organisation confirming such completion.

7. That upon compliance with paragraph 6 of these orders the wife do all things required:

   7.1to enable liver function tests to be performed on bodily samples provided by the wife at the request of the husband or his solicitors upon written notice to the wife on three occasions such requests to be made no more than three weeks apart, the first such request to be given within 7 days of notice pursuant to order 6.2;

   7.2for the results of such tests to be provided to the husband or his solicitors within 14 days of such tests being requested.

8. That within 30 days of this day the wife at her expense acquire the use of AL6000 breathalyser device in sound working order and thereafter at the commencement and conclusion of each period of time the wife is to spend with the child the wife do all such acts and things required to :

   8.1submit to breath testing for the presence of alcohol in her system using the breathalyser in accordance with its’ instructions for use in the presence of the husband and the superviser for that period of time acting in accordance with the provisions of paragraph 12 of these orders (“the superviser”); and

   8.2allow the husband and the supervisor to keep an accurate record of the results of such testing.

9. That the wife continue to be bound by the requirements of paragraph 8 of these orders until such time as the wife’s breath testing results obtained from compliance with that order show no alcohol greater than 0.01% blood alcohol content (BAC) (being the possible error reading) being present in her breath for each such test conducted over a continuous period of 6 months after the wife has commenced unsupervised time with the child.

10. That upon compliance with paragraphs 6, 7 and 8 of these orders the wife be assessed at the equally shared cost of the parties by Mr B psychologist or such other psychologist with expertise in pharmacology as the parties may agree in writing (“the assessor”) and for the purposes of such assessment:

    10.1    the assessor be provided with copies of:

    10.1.1all liver function and record of breath test results obtained pursuant to the provisions of paragraphs 7 and 8 of these orders;

    10.1.2 the records of the wife’s attendance and progress at the Supported Accommodation Program at the L Addictions Recovery Centre;

    10.1.3Ms D’s reports of 9 December 2005 and 18 June 2007; and

    10.1.4all the pathology test reports included in Dr S’s affidavit sworn 9 August 2007 and Dr S’s records;

    10.1.5The records in relation to the wife’s three admissions to Hospital;

    10.2the wife submit to such further tests or examination as the assessor reasonably requires.

11. That the assessor engaged by the parties pursuant to the provisions of paragraph 10 of these orders be requested to make a recommendation in writing as to whether time spent by the wife with the child should:

    11.1     continue to be supervised; or

    11.2     become unsupervised;

    having regard to whether unsupervised time with the wife poses an unacceptable risk to the child.

12. That until a recommendation is made for time spent by the wife with the child to become unsupervised pursuant to the provisions of paragraph 11 of these orders, the wife’s time spent with the child be supervised as follows:

    12.1one or other of the following people be present with the child for the whole of  each period of time the wife spends with the child (“the superviser”):

    12.1.1 Mr K M;

    12.1.2 Ms R M;

    12.1.3 Mr W M;

    12.1.4 Ms R W; or

    12.1.5 such other person who is prepared to abide by all the conditions of this order as the parties may agree in writing;

    12.1.6 the superviser ensure that the wife not drive a motor vehicle in which the child is a passenger during any periods of time that the wife spends with the child;

    12.1.7the superviser ensure that the wife not consume alcohol during any periods of time that the wife spends with the child; and

    12.1.8the superviser terminate any period of the wife spending time with the child and make suitable arrangements for the child to be returned to the husband if the superviser has cause to be concerned that:

    12.1.9 the wife is affected by the consumption of alcohol; the wife has driven a motor vehicle in which the child was a passenger; or

    12.1.9.1.for any other reason the time being spent is adverse to the interests of the child.

13. That subject to the requirement of supervision of the wife’s time pursuant to paragraph 12 of these orders and the wife having appropriate leave of absence from the Supported Accommodation Program at the L Addictions Recovery Centre, the wife spend time with the child as follows:

    13.1    Pending the child’s relocation to Northern Victoria:

    13.1.1 from 10am Saturday 18 August until 5pm Sunday 19 August 2007;

    13.1.2 from 10am Saturday 1 September until 12.00 noon Sunday 2 September 2007;

    13.1.3 from 10am Saturday 15 September until 5pm Sunday 16 September 2007;

    13.1.4 from 10am Monday 24 September until 5pm Thursday 27 September 2007;

    13.1.5 from 10am Thursday 4 October until 5pm Sunday 7 October 2007;

    13.1.6 from 10am until 4pm on Saturday 20 October 2007;

    13.1.7 from 10am until 5pm on Sunday 21 October 2007;

    13.1.8 thereafter for the balance of the 2007 school year each alternate weekend commencing on either 2 or 3 November 2007 as follows:

    13.1.9if the superviser is able to collect the child from his school or after school program on Friday afternoon, then commencing at 3.30pm or such later time up until 6.00pm as he is collected on the Friday; or

    13.1.9.1.otherwise commencing at 10.00am on the Saturday; and

    concluding in each case at 5.00pm on the following Sunday;

    13.1.10from 4.00pm 25 December 2007 until 5.00pm 2 January 2008;

    13.1.11   from 5.00pm 15 January until 5.00pm 26 January 2008;

    and for the purposes of the wife spending those periods of time with the child:

    13.1.12on any occasions when the child is collected by the supervisor from the child’s school or after school program on the Friday, the husband collect the child from the home of the supervisor or the wife’s home on the Sunday;

    13.1.13otherwise the husband deliver the child to the home of the supervisor or the wife’s home at the commencement of each period and the superviser return the child to the home of the husband at the conclusion of each period;

    13.2    After the child’s relocation to Northern Victoria:

    13.2.1 during school terms each alternate weekend in Melbourne from 10.00am Saturday until 2.00 pm on Sunday commencing 8 February 2008 and resuming in each school term thereafter as if uninterrupted by school holiday periods;

    13.2.2 alternate weekends pursuant to the provisions of the preceding paragraph be swapped so that as far as practicable the child spends time with the wife during weekends that:

    13.2.2.1.  include Mothers Day;

    13.2.2.2.include the wife’s birthday and the child’s birthday, or that fall on the next weekend after such days; and

    13.2.2.3.do not include the husband’s birthday or Fathers Day;

    and for the avoidance of doubt nothing in this order is to increase or decrease the overall number of weekends the child is to spend with the wife and if by virtue of swapping weekends the wife spends time with the child for 2 weekends in a row the child will spend the next 2 weekends with the husband unless otherwise agreed in writing;

    13.2.3 for one-half of all school holiday periods from 10am on the first day until 2pm on the last day as the parties may agree in default of agreement the first half of term 1, 2 and 3 school holiday periods and alternating halves of the summer school holiday periods commencing with first half in the summer of 2008-9 subject to the following:

    13.2.3.1.as far as practicable the term 1 school holiday periods be divided between the parties so that the child spends Easter with the:

    13.2.3.1.1.wife in 2008 and each alternate year thereafter; and

    13.2.3.1.2.husband in 2009 and each alternate year thereafter;

    13.2.3.2.at Christmas the child spend time with the:

    13.2.3.2.1.wife from 4pm Christmas Eve until 4pm Christmas Day in 2008 and each alternate year thereafter;

    13.2.3.2.2.husband from 4pm Christmas Day until 4pm Boxing Day in 2008 and each alternate year thereafter;

    13.2.3.2.3.husband from 4pm Christmas Eve until 4pm Christmas Day in 2009 and each alternate year thereafter; and

    13.2.3.2.4.wife from 4pm Christmas Day until 4pm Boxing Day in 2009 and each alternate year thereafter;

    13.2.4 after the child attains the age of 8 years the conclusion time for each period of time spent with the wife be extended to 4pm Sunday;

    and for the purposes of the wife spending periods of time with the child pursuant to the provisions of paragraph 13.2 of these orders the husband deliver the child to, and collect the child from, the home of the superviser, or the wife if the wife’s time is no longer required to be supervised, at the commencement and conclusion of each period;

    13.3 when the wife comes to Northern Victoria at times to be agreed between the parties provided always that such time does not interfere with the child spending school holiday and weekend time with husband.

14. That for the purposes of the wife spending periods of time with the child pursuant to the provisions of paragraph 13 of these orders the wife give the husband with at least 24 hours notice of any:

    14.1    inability on the part of the wife to:

    14.1.1 spend time with the child;

    14.1.2 have the child collected from his school or after school program; or

    14.2    change of superviser from the preceding period of time.

15. That the husband give the wife at least 24 hours notice of any inability to make the child available to spend time with the wife in accordance with the provisions of paragraph 13 of these orders and in the event of any such inability on the part of the husband such time be made up to the wife at the next available occasion.

16. That the husband facilitate telephone communication between the child and the wife at least every second day.

17. That subject to the wife having and maintaining at all relevant times the consent in writing of both the child’s school and after school program, the wife may attend the child’s after school program on 2 occasions each week  commencing as from 8 October 2007 to see the child and spend such time with him as the Principal of the school and Manager of the after school program permit, and for the avoidance of doubt it is noted that the husband consents to the wife doing so subject to the consents required by this particular order.

18. That both parties retain the right to receive copies of all school reports, photographs, newsletters, correspondence and the like, and to attend all school functions and meetings, including but not limited to Parent / Teacher interviews at which the attendance of a parent is required and the husband do all acts and things to ensure that the wife is kept advised of such events.

19. That each party provide the other with:

    19.1notice of any proposed overseas or extended interstate travel for the child as soon as reasonably practicable; and

    19.2a detailed itinerary and contact details in respect of such travel not less than 14 days prior to departure.

20. That each party keep the other informed as to any medical or dental condition or treatment of the child, including the details of the treating medical or dental practitioner, and do all things required to enable the other party to obtain relevant information concerning the child’s condition and treatment.

21. That all extant applications be otherwise dismissed and removed from the list of cases.

22. That 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.

TO BE NOTED

A.The wife does not concede that it is necessary for her to be restricted from driving.

B.The husband intends to continue facilitating daily telephone communication between the child and the wife.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Mackillop & Mackillop.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1948  of 2005

Mr Mackillop

Applicant

And

Ms Mackillop

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of defended cases.  Mr Wilson appears for the husband, Mr Fronistas for the wife, and Mr Arnold appears for the Independent Children's Lawyer.

2. The dispute concerns the future welfare and disposition, as between the parents, of where a son who was born on … October 2001 should live.  I have had the advantage of reading the Case Outline Documents provided by the parties which have been very helpful documents indeed.  I have also read the affidavits upon which each of the parties seek to rely together with all relevant reports.

3. At the commencement of the proceedings yesterday morning, it was agreed between counsel following a reasonably robust discussion that the applications be stood down and serious negotiations entered into in order to achieve a position whereby the parties themselves ordained the future, rather than have it imposed upon them by the court.

4. I am a proponent of the view that it is far better for the parties to ordain the future than have it forced upon them after a difficult and testing trial in the court, in an environment that may become both disturbing and disaffecting.  It would result also in a written judgment in which credibility issues may or may not be relevant, and if relevant, may conclude with findings that one party may use as a sword against the other.

5. Both parents in this matter had clear and obvious justiciable issues.  One of the matters concerned the relocation of the husband from the Melbourne area to northern Victoria.  That was a serious issue which is one of the complex matters that daily confront this court.  There is no common ground that can end with a result satisfactory for both parties.  In such an application, one of those two parties inevitably feels a sense of grievance.

6. However, the principles laid down by the Court of Appeal in this court and in the High Court of Australia are clear.  The practitioners have clearly advised their respective clients of those principles and it seems to me, if I may say so from reading the documents, that it was inevitable that there would be leave for the husband to relocate to northern Victoria given the discrete circumstances of this case.  See in particular AMS v AIF (1999) 199 CLR 160, U v U (2002) 211 CLR 238. That issue has now been agreed upon between the parties.

7. There were other issues that arose, being what I will stylistically refer to as “safety issues”.  They also have been satisfactorily negotiated and set out in the proposed orders.  I congratulate the parties on having the respect, the commonsense and the dignity in coming to this arrangement.  I have, as I said, read the papers and what is startlingly clear in this case is the positive support given by each parent for the other. 

8. Too many times in this court I see the reverse, where a party, whether the child lives with or spends time with that party, by subtle and covert means manipulates and alienates a child against the absent parent in a subversive manner.  That is not so in this case and I have every expectation that the child's life will mature and he will become, in the result, a productive member of the community.  Again, I extend my congratulations to both the husband and the wife in coming to this arrangement and wish them both the best in the future.

9. Significantly, too, I want to make it clear that the parties have been well served by their professional representatives and I congratulate them on achieving this sensible agreement within the shadow of the law.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  21 August 2007.