Malle & Malle

[2007] FamCA 771

FAMILY COURT OF AUSTRALIA

MALLE & MALLE [2007] FamCA 771

FAMILY LAW – Children – Final parenting orders – Registrar’s refusal to make orders by consent

Family Law Act 1975 (Cth), s.61DA

Newlands & Newlands (2007) FamCA 168
Goode & Goode (2006)FLC 93-286

HUSBAND: MR MALLE

WIFE: MRS MALLE

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: DGF 2634 of 1994

DATE DELIVERED: 5 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 5 July, 2007

REPRESENTATION

THE HUSBAND: In person

SOLICITOR FOR THE WIFE: Robert Halliday & Assoc.

INDEPENDENT CHILDREN’S LAWYER: CE Family lawyers

Orders

1. That all previous orders in respect of the child A born in May, 1992 be discharged.

2. That A live with his mother.

3. That A spend time with his father at such times as agreed between A and his father.

4. That each party have the day to day care of A whilst he is in their care.

5. That both parties have equal shared parental responsibility for A.

6. That pursuant to s65DA(2) of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure ‘A’ and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 2634  of 1994

MR MALLE

Husband

And

MRS MALLE

Wife

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This case concerns the parenting arrangements that should be made for the child, A, who was born in May 1992.  He is 15.  His parents are Mr and Mrs Malle.  They commenced a relationship in about 1985, married in November 1988 and initially separated in 1992.  Their relationship continued intermittently until late 1998.  During that period, the family lived in Queensland.

1. The parties have two other children.  W was born in September 1989 and is almost 18.  C was born in January 1998 and is nine.  C is autistic and the wife's evidence (contained in an affidavit filed in the proceedings) is that certain levels of her intellectual functioning are those of a four‑year‑old.  She attends a special school.  The wife has two children from a previous relationship, being B, born in January 1984, and N, born in April 1985. 

1. The wife is now 41 and lives in D.  The husband is now 44 and lives in the Sunshine Coast area, in Queensland.  His partner is one of the wife's sisters, L.  The wife and L are estranged.  No doubt that has complicated communication in the matter.  Her older sons, B and N, have both partnered and have young children. 

1. After the parties separated, the mother remained in Queensland for a short period.  In late December 1998 she, N, B and C moved to live in Melbourne.  It is her evidence that she had been subjected to physical and verbal abuse by the husband during the marriage and she deposed to a significant assault by a third party just prior to her removal to Melbourne, responsibility for which she attributed to the husband.

1. Proceedings commenced soon after separation.  On 27 October 1999 orders were made by consent, providing for W and A to live with the husband and for C to live with the wife.  The wife has deposed to the circumstances in which she entered those orders.  In brief, it is her evidence that she did so reluctantly and in circumstances where she saw it as being the only way she would have any contact whatsoever with W and A.

1. This round of proceedings commenced on 31 January 2006 when the wife filed a form 1 application seeking an order that A live with her and a number of other orders, including an order restraining the husband from using corporal punishment on A.  On that day she also filed a form 4 in which she alleged that A had been the subject of inappropriate corporal punishment by the husband. 

1. On 10 February 2006 a number of orders were made providing for the wife to have contact with A, essentially for the whole of each school term holiday.  There were also injunctions relating to corporal punishment and orders providing for the provision of information about his schooling.  The matter otherwise went into the pool of cases awaiting trial notice directions. 

1. There is little point in summarising the litigation history from that point until early this year.  In anticipation of a trial, an order was made for the preparation of a family report.  In evidence is a family report prepared by Mr S, dated 21 March 2007.  In it he refers to a report prepared by him in the earlier proceedings between the parties.  That earlier report, dated 19 May 1997, outlines the history of the parties' volatile relationship and their very different and disputed competing historic narratives. 

1. When preparing his report for these proceedings, Mr S was only able to speak with the husband by telephone as he continues to live, as he has for many years, in Queensland.  Mr S was able to meet with A when he was in Melbourne, and he met with the wife at that time, too.

1. At that time the husband sought that A remain living with him in Queensland and the wife sought that he move to live with her in Melbourne.  Mr S’s report makes it clear that when the wife and A came to see him the wife was prepared, having had some discussions with A, to agree to allow him to stay living in Queensland because that seemed to be A’s stated preference.  By then, although he was just 15, he had left school and was working as a chef.

1. Mr S records a number of phone calls between him, and the husband in Queensland, and his discussions with the wife.  His recommendation was that, because the parties seemed to be in agreement, the Court should look positively on any orders submitted to be made by consent pursuant to which A would remain living in Queensland and spend time with his mother in Melbourne.  However, it is clear that circumstances changed radically after that report was prepared. 

1. In an affidavit filed by her on 11 May 2007, the wife deposed to events which occurred between seeing Mr S and that day.  It should be said that, throughout the proceedings, the wife expressed concern about numerous aspects of A's parenting and the circumstances in which he was living in Queensland.  Her evidence is that A rang her on 10 May, 2007.  He said he had been assaulted by his older brother, he had been kicked out of his father's home and he had contacted police in the Sunshine Coast area.  They had taken him to a youth hostel to spend that night;  he had nowhere to go, no money and no identification. 

1. The following day, being the day the mother swore and filed her affidavit, she spoke with A again.  She arranged for him to fly from Queensland to Melbourne.  He did that and he has lived in Melbourne with her and C since.  In that same affidavit she spoke of A's ambivalence about expressing his genuine wishes as to residence in the past, and reiterated a number of concerns about his parenting and the environment to which he had been exposed in Queensland. 

1. As the parties have now agreed to the orders that should be made, I do not propose to summarise the whole of her concerns, save to say that I am satisfied that the parties' current agreement, which is that A will remain living in Melbourne with his mother, is certainly in his best interests at this time.

1. Once the independent children's lawyer learnt that A had come to live with his mother in Melbourne, there were further discussions between the parties.  A minute of a proposed consent order was prepared, providing that all previous parenting orders in respect of A be discharged, that A live with his mother and spend such time with his father as was agreed between A and his father.  The minute provided for the parents to have joint parental responsibility for A.  That minute was signed by the father on 5 June, the mother on 14 June and the independent children's lawyer on 19 June.  It was then submitted to this Court, to be made by consent.

1. On 22 June a registrar returned the signed minute and correspondence to the independent children's lawyer, advising that she was not prepared to make an order in the terms set out.  Her concern related to the provision that the parties have "joint parental responsibility" for A.  In her letter she referred to the case of Newlands & Newlands (2007) FamCA 168. That case is reported as N & N, although the citation is correct.

1. Newlands is a recent decision of the Full Court, in which it considered the ramifications of the legislative amendments which came into force on 1 July 2006 on the meaning of orders for parental responsibility.  In its earlier decision of Goode & Goode (2006) FLC 93-286, the Full Court had noted the difference between the operation of an order triggered by the presumption of equal shared parental responsibility contained in section 61DA of the Family Law Act1975, and to the status quo which operates until a parenting order is specifically made.  Until such an order is made, parents can exercise their joint parental responsibility either jointly or severally.  Once the presumption of equal shared parental responsibility is triggered, and an order made in those terms, major long-term decisions must be made by both parents.

1. In Newlands the trial judge had made an order for joint parental responsibility without making it clear whether that responsibility was to be exercised jointly, or jointly and severally.  Having regard to that decision the registrar, appropriately in my view, declined to make the order in the terms proposed.  She advised the independent children's lawyer that the matter would remain listed for final hearing this week;  if the parties wanted to re-submit an order, it would need to be done before then.

1. I add that the husband filed no material in respect of the pending trial.  That could be explicable by his reasonable belief that the matter had resolved at counselling.  I do note that he filed no response to the wife’s original application, notwithstanding orders requiring that to be done as far back as 10 February 2006.  In any event, that is now irrelevant.

1. Yesterday I asked an associate to make telephone calls to the independent children's lawyer, the solicitors for the wife and to the husband himself.  She spoke to lawyers for the independent children’s lawyer and the wife, and to the husband.  At my request she sought clarification from them as to whether the order sought in relation to joint parental responsibility was an order for equal shared parental responsibility, or something different.  She was assured by each of them that he or she sought an order for equal shared parental responsibility.  Each confirmed their agreement to the other orders contained in the minute which they had signed.

1. In those circumstances, I am satisfied that each of the parties and the independent children's lawyer seeks that orders be made providing for A to live with his mother, to spend time with his father as agreed between him and his father, for the parties to each be responsible for his day to day care whilst he is with them, and for them to have equal shared parental responsibility for him. 

1. That agreement is, I am satisfied, consistent with the objects and principles which underlie the part of the Family Law Act 1975 which deals with children.  I am also satisfied that an independent assessment of the primary and additional considerations would result in a finding that the orders proposed are in the best interests of A.

1. In Melbourne, where he has now lived since mid-May, A has resumed his relationship with his sister C, and with his two older brothers and their young families.  He is able to spend time with his father in Queensland, if that is what he wants to do.  If he wants to spend time with his other brother, W, who lives independently in Queensland, that could occur.  He will have the security and care that is available to him in his mother's home in Melbourne.  He may return to school, whether a secondary school, a TAFE or another institution.  He can participate in sport and in other activities appropriate to his age and stage.  The orders will allow him to have a meaningful relationship with both parents, to the maximum extent possible.

1. I add that whilst finding that the presumption of equal shared parental responsibility applies, notwithstanding some of the wife's concerns, this is clearly a case in which it is neither practicable nor in the best interests of A for orders to provide that he spend equal time with his parents, or more substantial and significant time with his father than is proposed.  His parents have lived for many years in different States.  He has siblings in both those States.  He is at an age when it is not possible for him to move between States, having regard to his need for further education or training, and the need for him to be protected from physical and emotional harm.

1. In those circumstances I am satisfied that, with the consent of the husband, wife and independent children's lawyer, orders should be made providing for him to live with his mother, spend time with his father as agreed between A and his father, and for the parties to have equal shared parental responsibility for him.  All extant applications will be otherwise dismissed and removed from the list of cases awaiting hearing.  The independent children's lawyer will be discharged forthwith.  If there are any subpoenaed documents they can be returned.  The Court will provide copies of the final orders to the parties at their respective addresses for service. 

I certify  that the preceding
25 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MALLE & MALLE