Markey and Addens (No 2)

[2017] FamCA 596

FAMILY COURT OF AUSTRALIA

MARKEY & ADDENS (NO 2) [2017] FamCA 596

FAMILY LAW – CHILDREN – Consent orders – Whether the Court should make Consent Orders in relation to parenting matters.

Family Law Act 1975 (Cth)

APPLICANT: Ms Markey

RESPONDENT: Mr Addens

FILE NUMBER: SYC 4884 of 2013

DATE DELIVERED: 17 July 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 17 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Slater & Gordon Lawyers

ADVOCATE FOR THE RESPONDENT: In Person

Orders

1. That all previous Orders be and are hereby discharged.

2. That the Mother and Father have equal shared parental responsibility for the child named the child B, born … 2006 (“the child”).

3. That the child live with each parent as follows:

   Commencing from the first Friday following the date of these Orders

   (a)    During school terms on a week-about basis, with the child to live with the Mother from after school Friday in Week 1 to before school Friday in Week 2 and with the Father from after school Friday in Week 2 to before school Friday in the following week;

   (b)   During school holiday periods, for one half of each school holiday period as follows:

   (i)In even numbered years, with the Mother in the first half of the school holiday periods and with the Father during the second half of the school holidays;

   (ii) In odd numbered years, with the Father in the first half of the school holiday periods and with the Mother in the second half of the school holidays;

   (c)   That for the purposes of Order 3(b) above, the school holidays commence at the conclusion of school on the last day of the term and the second half of the school holiday period is defined as commencing from 5:00pm on the midpoint of the school holidays and concluding before school on the first day of the next school term.  In the event that there are an uneven number of nights during the school holiday period, the child is to live with the Mother on the additional night;

   (d)   During Christmas, with the Mother from 3.00pm Christmas Eve until 3.00pm Boxing Day in every even numbered year and with the Father from 3.00pm Christmas Eve until 3.00pm Boxing Day in every odd numbered year;

   (e)   During the Mother’s Day weekend, if the child is not otherwise spending time with the Mother then with the Mother from 5.00pm the Saturday preceding Mother’s Day until before school on the Monday immediately following Mother’s Day;

   (f)    During the Father’s Day weekend, if the child is not otherwise spending time with the Father then with the Father from 5.00pm the Saturday preceding Father’s Day until before school on the Monday immediately following Father’s Day.

4. That for the purposes of changeover, the Father shall collect the child from school or the Mother’s residence, whichever is appropriate, at the commencement of his time with the child and the Mother shall collect the child from school or the Father’s residence, whichever is appropriate, at the cessation of the Father’s time with the child.

5. Both parents shall do all such acts and things, and sign all authorities necessary to continue the child’s enrolment at Suburb C Public School until the completion of his primary schooling.

6. Both parents shall do all such acts and things, and sign all authorities necessary to cause the child to be enrolled in and attend Suburb D High School commencing from the 2019 school year.

7. That both parents shall do all such acts and things, and sign all authorities necessary to enable the child to attend upon Dr E, Psychologist, or such other Psychologist as the parties may agree.

8. That both parents shall do all such acts and things, and sign all authorities necessary to authorise any school attended by the child to provide to the other particulars of the child’s schooling including but not limited to the provision of school reports, notices of school photographs, circulars sent out to parents, notices of school excursions and any other activities to which the child is a participant.  In the event that either parent receives a school note or permission slip relevant to the child’s schooling then he or she shall provide a copy of same to the other parent within 24 hours of receipt.

9. The Court notes that notwithstanding Order 6 hereof, both parties may elect to have the child sit for entrance examinations at selective schools.

10. The Court notes that on the basis that the child is to consult Dr E, he will no longer attend upon the School Counsellor at Suburb C Public School.

11. That the parties be restrained from enrolling the child in any further extra-curricular activities without the consent of the other party and that they cause the child to continue to attend those in which he is currently enrolled, unless otherwise agreed between them in writing.  In the event that the parties are unable to reach agreement, the Mother shall be permitted to elect such activities to be attended by the child and enrol him in same.

12. That both parents shall do all such acts and things, and sign all authorities necessary to any medical practitioner, specialist, orthodontist and/or any other health professional so that the other party can obtain particulars in relation to the child’s health.

13. That each parent shall notify the other as soon as possible, and in any event, within two (2) hours of any serious injury or illness suffered by the child whilst with that party including providing particulars of the name and details of the child’s treating practitioner and/or hospital in which the child has been admitted.

14. That each parent notify the other of the address and telephone numbers of the place/s where the child will be staying during holiday periods in Australia spent away from their residence not later than 24 hours prior to the commencement of any such holiday.

15. That in the event either parent wishes to travel overseas with the child, the travelling parent shall provide to the other parent, at least 28 days prior to the travel, the following:

    (a)A copy of the itinerary;

    (b)A copy of the return tickets; and

    (c)Full contact details for the child whilst they are overseas, including addresses and telephone numbers of where they will be staying

    provided that such proposed travel takes place during the parents' time with the child pursuant to these Orders.

16. That the Mother shall retain the child’s passport at all times, except for when required by the Father for overseas travel in which case the Mother shall provide the passport to the Father within three (3) days of the Father’s compliance with Order 15 above and the Father shall return the child’s passport to the Mother within 48 hours after returning from the travel.

17. That both parents be and are hereby restrained from denigrating the other or a member of the other’s family in the presence or hearing of the child, and from discussing any aspect of the proceedings before the Court in the presence or hearing of the child.

18. That on a without admissions basis, neither party shall consume illicit and/or illegal substances when the child is in their care.

19. That each party notify the other, no more than 24 hours after any change to their address and/or mobile telephone number and/or e-mail address.

20. That all outstanding applications otherwise be dismissed.

21. That the Father be restrained from attending upon Suburb C Public School when the child is in the care of the Mother pursuant to these Orders other than to atetnd events at the school to which parents have been invited, or to attend the coaching duties carried out by the Father.

22. That each party ensure that the child has access to his mobile phone when in the care of that party.

23. Pursuant to s 90SM of the Act, the Father will do all things and execute all documents as are necessary to transfer to the Mother all his right, title and interest in five (5) paintings and sculptures, being Items numbered 10, 11, 12, 13 and 23 of Part O of his Financial Statement sworn 7 July 2017 within 28 days of the date of these Orders.

24. That for the purposes of Order 23 hereof, the Father shall make the artwork available for collection by the Mother or her nominee and shall ensure that such artwork is in good condition having regard to their age and state of repair.

25. The Court notes that the Father intends to continue to pay the child’s educational expenses and pay to the Mother one half of the invoiced amount already paid by the Mother in respect of the child’s dental expenses, and that the parties hope to enter into a Child Support Agreement to reflect this.

26. That in the event either party fails, refuses or neglects to sign documents to give effect to these Orders then a Registrar or such other person of the Family Court of Australia may sign such documents on behalf of such party pursuant to s 106A of the Act.

IT IS FURTHER ORDERED THAT

1. The children’s matter is removed from the pending cases list.

2. I reserve the determination of whether or not orders can be made by consent to resolve the property dispute between the parties to a date to be fixed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Markey & Addens (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4884/2013

Ms Markey

Applicant

And

Mr Addens

Respondent

REASONS FOR JUDGMENT

1. I have been asked to make consent orders in respect of the son of Ms Markey and Mr Addens, being one the child B (“the child”).

2. In the proceedings, issues have been raised about various forms of risk to the child, much of which flowed from a history of alleged family violence in relation to the father as against the mother, in relation to what the father had previously said were mental health issues on the part of the mother, and in relation to alleged drug use on the part of the father.

3. From consideration of the matters that have fallen in exchange between myself and Mr Addens and myself and Mr Gould of Counsel, I consider that, in particular, that these consent orders will take a number of the highly disputed matters out of play between the parties, because they have now resolved them, and as this will bring an end to the litigation in relation to the child, litigation which has been in place for a number of years now, that these orders provide sufficiently for the issues of family violence that have been raised, and despite the concerns raised in the Family Report about the problems with shared care, deal sufficiently with the disputes between the parties as to mean that the terms in relation to the child are in his best interests.

4. Accordingly I make orders in accordance with the orders concerning the child in the agreed terms handed up to me and marked as Exhibit C1 in the proceedings.

5. The children’s matter is removed from the pending cases list.

6. I reserve the determination of whether or not orders can be made by consent to resolve the property dispute between the parties to a date to be fixed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 17 July 2017.

Associate:

Date:  14 August 2017