Madison and Madison

FAMILY COURT OF AUSTRALIA

MADISON & MADISON	[2010] FamCA 558
FAMILY LAW – CHILDREN – Consent orders between the parents – Where the Independent Children’s Lawyer declined to sign the consent orders – Matter to be re-listed before the docket judge if it is re-litigated – Application for costs order – Where s 117(4) prevents a costs order
APPLICANT:		Ms Madison

RESPONDENT:

Mr Madison

INDEPENDENT CHILDREN’S LAWYER:

Ms O’Neill, Solicitor

FILE NUMBER:

BRC

1200

2008

DATE DELIVERED:

22 June 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

22 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Middleton of Counsel appearing for the Applicant Mother

SOLICITORS FOR THE APPLICANT:

Rhonda Sheehy & Associates

COUNSEL FOR THE RESPONDENT:

Ms Martin of Counsel appearing for the Respondent Father

SOLICITORS FOR THE RESPONDENT:

Jai Reddy Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Linklater-Steele of Counsel appearing for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Office Queensland

Orders

IT IS ORDERED BY CONSENT:

That all previous Orders be discharged, save for Orders 1 and 2 of the Orders made by this Honourable Court on 9 April 2009.

Child Welfare Matters

That the said child, K born … June 2001, live with the Mother.
That the Mother have sole parental responsibility for the said child, K.
That the Father communicate with and spend meaningful time with the said child, K at all times as may be mutually agreed and failing agreement as follows:
a.each alternate weekend during school terms from after school Wednesday to before school Monday subject to paragraph 8 hereof with changeover at the school to coincide with the Mother’s work commitments;
b.by telephone communication each Monday, Wednesday and Friday and on the Fathers’ birthday with the Father to initiate the telephone call to the Mother’s landline telephone between 7.00 p.m. and 7.30 p.m. with the Mother to facilitate the telephone call by permitting the said child to answer the telephone call during that period.
That the child, C born … April 1996, live with the Father.
That the Father have sole parental responsibility for the said child, C.
That the Mother communicate with and spend meaningful time with the said child, C at all times as may be agreed between the Mother and said child, C.
That notwithstanding the above, the said child, K spend time with each of the parents as follows:
a.on Father’s Day with the Father from 9.00 a.m. to 5.00 p.m.;
b.on Mother’s Day with the Mother from 9.00 a.m. to 5.00 p.m.;
c.for Easter, in the event that it does not form part of the Autumn Queensland school holiday periods:
i.in even years, from 5.00 p.m. Easter Thursday to 5.00 p.m. Easter Saturday with the Father, and from 5.00 p.m. Easter Saturday to
5.00 p.m. Easter Monday with the Mother;
ii.in odd years, from 5.00 p.m. Easter Thursday to 5.00 p.m. Easter Saturday with the Mother, and from 5.00 p.m. Easter Saturday to
5.00 p.m. Easter Monday with the Father;
d.for one of the Autumn Queensland School holiday periods and, in particular, as follows:
i.for the first half in even years, with such time to commence at
5.00 p.m. on the last day of school and to conclude on the middle day of the holidays at 5.00 p.m. with the Father;
ii.for the second half in odd years, with such time to commence at
5.00 p.m. on the middle day of the school holidays and to conclude at 9.00 a.m. on the first day back at school with the Father;
iii.for the first half in odd years, with such time to commence at
5.00 p.m. on the last day of school and to conclude on the middle day of the holidays at 5.00 p.m. with the Mother;
iv.for the second half in even years, with such time to commence at
5.00 p.m. on the middle day of the school holidays and to conclude at 9.00 a.m. on the first day back at school with the Mother;
e.for one half of the June/July and September/October Queensland gazetted school holidays and, in particular, as follows:
i.for the first half in even years, with such time to commence at
9.00 a.m. the Monday after the last day of school and to conclude the following Sunday at 9.00 a.m. with the Father;
ii.for the second half in odd years, with such time to commence at
9.00 a.m. the middle Sunday and to conclude the second Monday following at 9.00 a.m. with the Father;
iii.for the first half in odd years, with such time to commence at
9.00 a.m. the Monday after the last day of school and to conclude the following Sunday at 9.00 a.m. with the Mother;
iv.for the second half in even years, with such time to commence at
9.00 a.m. the middle Sunday and to conclude the second Monday following at 9.00 a.m. with the Mother;
f.for one half of the Christmas gazetted school holidays and, in particular, as follows:
i.for the first half in even years, with such time to commence at
9.00 a.m. the Monday after the last day of school and to conclude the third Sunday following at 9.00 a.m. with the Father;
ii.for the second half in odd years, with such time to commence the third Sunday at 9.00 a.m. and to conclude at 9.00 a.m. the Monday prior to school recommencing with the Father;
iii.for the first half in odd years, with such time to commence at
9.00 a.m. the Monday after the last day of school and to conclude the third Sunday following at 9.00 a.m. with the Mother;
iv.for the second half in even years, with such time to commence the third Sunday at 9.00 a.m. and to conclude at 9.00 a.m. the Monday prior to school recommencing with the Mother;
g.on the said child’s, K’s, birthday with the parent with whom they are not living for two (2) hours should that birthday fall on a school day and from 1.00 p.m. to 5.00 p.m. should the said children’s birthday fall on a weekend.
That notwithstanding anything hereinbefore mentioned, the Mother have telephone communication to the Father’s landline or other nominated landline by the Father with the said child, K, between 7:00 p.m. and 7.30 p.m. on Fridays when the said child is spending time with the Father, with the Mother to initiate the phone call.
That where changeover does not occur at school, changeovers occur at the carpark at D.
That the Mother and Father be at liberty to attend all school functions to which parents are invited including, but not limited to, sports days, carnivals, concerts, plays, fetes, parent/teacher meetings and the like.
That the Mother and Father take all steps necessary with the Principal/Secretary of the School/s at which the said child is enrolled from time to time to enable the Mother and Father to each receive at his/her address and at his/her expense, copies of the said child’s school reports, school photographs and newsletters of functions.
That each party keep the other informed in writing of his/her current residential address and contact telephone number and of any change thereto within forty-eight (48) hours of any such change.
That the Mother and Father by these Orders authorises all Health Care Providers and Educational Experts involved with the said children from time to time to liaise directly with the other parent at his/her request and at his/her expense and the Mother/Father immediately provide the full names/addresses and contact telephone numbers of such Health Care Providers and Educational Experts to the other parent forthwith.
That each party contact the other in the event of any medical or other emergency involving the said children whilst with him/her.
That the Father forthwith return to the Mother the passports for the said children, K born … June 2001 and M born … October 1993, by delivering same to Rhonda Sheehy & Associates.

Property Settlement

That within sixty (60) days from the date of these Orders the Husband shall refinance the existing mortgage indebtedness over the former matrimonial property at L and contemporaneously pay to the Wife the sum of $154,000.
To facilitate the refinance referred to above, the parties will each do all such acts and things and sign all such necessary documents to apply the funds currently held in the mortgage offset account with the ANZ Bank in discharge of the mortgage.
Contemporaneous with the payment referred to in Order 17 above, the Wife shall do all acts and things and sign all documentation necessary to transfer all her right, title and interest in the above described property and vacate the property.
Should the Husband default in payment and/or not be able to refinance the mortgage then:
a.the former matrimonial home situated at L be forthwith listed for sale at current market value as agreed between the parties with three (3) reputable real estate agents in the area and failing agreement as to the current market value, then as determined by the Chief Executive Officer of the Real Estate Institute of Queensland at the request of either party but at the joint expense of both parties;
b.that on settlement of the sale of the former matrimonial home there be paid all real estate agent’s commission, release fees, rates adjustment, all monies due and owing to the mortgagee and any other adjustment consequent upon sale with the balance hereinafter referred to as “nett proceeds of sale”;
c.that not less than ten (10) business days prior to settlement of the sale of the former matrimonial home the Wife and Husband attend upon the relevant branch of the mortgagee thereover and sign all necessary documents to release the existing joint mortgage indebtedness thereover in readiness for settlement;
d.that pending the sale or transfer of the former matrimonial home, the Wife continue to reside therein and be solely responsible for:
i.maintaining same in a clean and tidy state for the purposes of sale;
ii.maintaining same in its current state of repair;
iii.cooperating with all real estate agents and prospective purchasers insofar as mutual inspections and provision of keys is concerned;
e.that the Wife and Husband pay his/her own legal costs of sale;
f.that on settlement of the sale of the former matrimonial home the Wife be paid a sum of $154,000.
That the Wife retain for her sole use and benefit absolutely the Holden Astra motor vehicle and those items of furniture and chattels on the list attached hereto and marked with the letter “A” together with her superannuation entitlements.
That the Husband transfer all his right, title and interest in and to the Holden Astra motor vehicle to the Wife for her sole use and benefit absolutely within sixty (60) days of the date of receipt of these Orders duly sealed from this Honourable Court.
That the Husband retain for his sole use and benefit absolutely the VT Commodore Station Wagon, the aluminium boat on trailer and Yamaha motor, the work trailer, the box trailer, the compressor, aluminum ladder, saw horses, trolley, miscellaneous tools and equipment, the proceeds of sale of the pet snakes and pet snake, the proceeds of sale/retention of incubator by husband, the proceeds of sale of timber, the five mags and tyres and the airconditioning unit, various boxes of household belongings (located under the stairs), pool table, church pew, bedside tables located in the spare room, one 7 drawer solid timber chest, one double bunk beds with mattresses, the Father’s and C’s New Zealand snow gear, a bundle of photographs currently in the possession of the Wife, his dog (cattle dog), new table craft cutlery set, 7.5 kg Hoover washing machine, one large crystal vase, one large decorative framed timber mirror, the steam mop, the dining table and chairs, and all other furniture and chattels not of a personal nature currently in the former matrimonial home and the proceeds of sale of the ladies shaver, the savings retained by him at separation and the cash monies retained by him at separation.
That the Wife transfer to the Husband for his sole use and benefit absolutely all her right, title and interest in and to the VT Commodore Station Wagon within sixty (60) days of the date of receipt of these Orders duly sealed from this Honourable Court.
That the Wife remain as Trustee for the children, M born … October 1993 and K born … June 2001, of two thirds of the total number of shares currently held on behalf of all three (3) children, PROVIDED THAT the shares are utilised for the purposes of their education and general welfare.
That the Wife within sixty (60) days of the date of these Orders, do all such acts and things necessary to transfer one third of the total shares described above to the Husband as trustee for the child, C born … April 1996, PROVIDED THAT the shares are utilised for the purposes of her education and general welfare.
That unless otherwise specified in these Orders, each party be solely entitled to the exclusion of the other, to all other property and resources in the possession of such party, including any liabilities attached thereto, as at the date hereof and indemnifies the other party against any responsibility therefore.
That for the purposes of effecting these Orders, each party sign as required all necessary documents and, in particular:
a.sale authority/ies;
b.auction documents;
c.contracts of sale;
d.release authority/ies to any mortgagee;
e.loan documents or variations thereof;
f.transfer documents;
g.settlement authority/ies;
h.transfer of motor vehicle registration forms;
i.transfer of boat registration and trailer registration forms;
j.any other associated document pertaining to the sale of real property.
That in the event that either party refuses or neglects to sign (within forty-eight (48) hours of a written request to do so) any documents or do any act necessary to effect the terms of these Orders, the Registrar of this Honourable Court is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act, to execute such documents on behalf of the defaulting party and the party in default is ordered to pay all reasonable Solicitor/own client costs incurred by the non-defaulting party.
That either party have liberty to apply for matters relating to enforcement or interpretation of this Order upon giving seven (7) days notice in writing to the other.

IT IS FURTHER ORDERED:

If the matter is to be re-litigated it is to be listed before the Honourable Justice Barry.
The Mother to present the child, K, for therapetutic counselling with the State Department of Community & Youth Mental Health Services and to abide by any direction given by that Department.
The Independent Children’s Lawyer given leave to provide to any counsellor or therapist to which either of the children may attend, such material from the Court file including subpoenaed documentation as she in her discretion deems appropriate.
That the Independent Children’s Lawyer be discharged within three (3) months from the date of these Orders.
Pursuant to s 62B and s 65DA(2), 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.

NOTATION:

The children are to be taken to Mr F who is asked to explain the Orders to the children and to discuss with them their rights pursuant to the Orders.

IT IS NOTED that publication of this judgment under the pseudonym Madison and Madison is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1200 of 2008

MS MADISON

Applicant

And

MR MADISON

Respondent

REASONS FOR JUDGMENT

Yesterday was the Winter solstice, the shortest day of the year. I expect for the parties, in the course of your lengthy negotiations, it must have seemed like the longest day of the year. To your great credit, you have managed to put together consent orders; they have been signed. Issues have been raised with me by counsel for the Independent Children's Lawyer, and I will advert to those submissions in a moment, but I take into account that it is no easy task to arrive at agreement.
The important thing, from my perspective, is to make sure that the agreement sticks, that there will be good faith and honourable conduct on the part of each to make sure that the consent orders are not undermined or sabotaged in any way. There are some people who leave the court room and then have second thoughts and they want to treat the court room door as if it is a revolving door and they can come back and re-litigate. That is to be discouraged.
What I propose to do, unless there is some major objection, is to put an additional clause in there that if the matter is to be in any way re-litigated it is to be listed before myself, and I can assure you that having dealt with this matter in my docket over a period of time, I have reasonable knowledge of the dynamics of the relationship and the impact that that has had on all three children.
Now, counsel for the Independent Children's Lawyer has declined to sign the consent orders for the reasons he has expressed this morning. Essentially, that is that the father has been making serious allegations about the mother’s household in his affidavits and by way of complaints to the Department of Community Services for a long period of time, and now he is prepared to enter into orders that his youngest child can remain in the mother’s care.
The passage that I was adverting to in the entry goes back two years; it was June 2008. But this is what the Departmental officer recorded:
Subject children identified to be experiencing conflict and emotional distress as a result of family law conflict. [The father[ has a significant criminal history including domestic violence, drugs, fraud and mental health issues. It is my assessment that [the father] is feeling quite desperate about the Family Court decision –
That was a recent decision of Purdon-Sully FM –
and that his history suggests that he is very capable of manipulating and influencing his daughters. [The mother] also appears to struggle to keep her feelings neutral in relation to [the father] when talking with her daughters, something she is mindful of and will try and maintain.
I do not want to be overly critical - it is not my function. I take citizens as I find them. They come to my court, it is a free country and you are entitled to litigate and be dealt with courteously and respectfully. But you read the material here, you are not in line for any awards as parents. You would have to accept that.
And I am not attributing blame in any particular proportions, but there is an expression that is used by social workers and psychologists, and they say “a good enough parent”. That is what I would like you to strive for, is to be treating the children as you would want to be treated and to treat the other party as you would prefer to be treated.
A specialist obstetrician I knew well years ago made the observation to me that the best thing a father can do for his children is to love their mother. I think that was told to me about 25 years ago and it is probably treated as a bit of a sexist remark these days, a bit one sided, but I can say with a great deal of certainty that the worst thing a parent can do to his or her children is to alienate them in any way, shape or form from the other parent.
I have told you before - you will rue the day that you have done that to your children. The children will grow up and the price they will have paid is the loss of their childhood. Now, I fully appreciate the reservations expressed by the Independent Children's Lawyer, but on balance I propose to make the orders as signed by the parties.

It was suggested that there should be no order for C, having regard to her age and effectively expressing concerns that giving the father sole parental responsibility in circumstances where there is a considerable body of evidence that he has engaged in a practice of alienation. I do not want to go down that road.
I can simply say that I normally see merit in empowering children, particularly of C’s age, who has been witness to lengthy, ongoing conflict between their parents, as has undoubtedly been the case here. However, counsel for the father submitted that the order reflects C’s wishes - I accept that. The order reflects the parents’ wishes - I accept that.
The order hopefully will bring about a resolution to this litigation, and my assessment is the litigation is a significant part of the problem. It provides the playing field for the ongoing animosity and the forum for the allegations. You should, in the ordinary course when you leave the court room, feel a sense of relief. The stress should, after a little while, disappear. You can get on with the ordinary business of living.
There is no point going out and remonstrating about what might have been if you had litigated. The only person that could tell you that is myself and I do not make up my mind until I have heard all the evidence and all the cross-examination. But I am satisfied that by having the matter relisted before myself, and concerns raised by the Independent Children's Lawyer can, to a significant degree, be assuaged.
I turn to consider other issues. A costs order was sought - I won’t dwell on that. Counsel for the father has drawn my attention to section 117 subparagraph (4). The mother has entered into a costs agreement and she is going to be liable, seemingly, for $10,400. In the ordinary course I would have had little hesitation in ordering the father to pay it, but as he is legally aided there is a prohibition on that and I do not have the power to so order.
The mother agrees to an order to present K for counselling with the State Department of Community & Youth Mental Health Services and to abide by any direction given by that Department. So an order will be added in those terms. I will make a notation to the order that the children are to be taken to Mr F, who is asked to explain the orders to the children and discuss with them their rights pursuant to those orders.
In relation to the other issue which, again, doesn’t bode all that well for the future - it’s a very small point I would have thought, but it’s C’s mobile phone number. And what I’m faced with is a statement where the child has already said to a neutral person like Mr F – a very experienced social worker and very sensitive report writer – C has no difficulty with her mother knowing the number and yet the father still advances reasons why he shouldn’t have to provide it. Well, he can provide it now. So I’m ordering him to. Would you give him pencil and paper and he can hand it over to the mother. Thank you. That will save the order having to be made.
I suspect from the history of this matter that I’ve read that C is old enough and experienced enough in the conflict scene to be able to handle herself on the mobile phone and simply terminate the call and leave her mobile switched off for the period of time if she wishes to.

RECORDED : NOT TRANSCRIBED

For the reasons given I propose to make orders in terms of the draft orders signed by the parties, initialled by me, and placed with the papers. Those orders will issue in due course.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date: 22 June 2010

[2010] FamCA 558

22 June 2010

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Consent

Costs

Remedies

Statutory Construction