Mason and Wilson

[2008] FamCA 1006

FAMILY COURT OF AUSTRALIA

MASON & WILSON [2008] FamCA 1006

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – by consent otherwise to proceed on parental responsibility orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Mason

RESPONDENT: Mr Wilson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6729 of 2007

DATE DELIVERED: 19 NOVEMBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 18 & 19 NOVEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR HOWE

SOLICITOR FOR THE RESPONDENT: JKB LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR CURTAIN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: C.E. FAMILY LAWYERS

Orders

IT IS ORDERED BY CONSENT:

1. THAT the children J born … July 2001 and N born … November 2003 live with the mother.

2. THAT both children spend time and communicate with the father as follows:

   (a)on each alternate weekend commencing Friday 28 November 2008 from the conclusion of school on the Friday until the commencement of school the following Tuesday and such time spent shall continue until the first applicable weekend in July 2010;

   (b)from that weekend in July 2010, and on a continuing basis from the conclusion of school on Friday until the commencement of school the following Wednesday morning;

   (c)for one half of every school term holiday by agreement but in default of agreement for the first half in odd numbered calendar years and for the second half thereof in even numbered calendar years;

   (d)for half of every long summer school holiday period by agreement but in default of agreement for the first half thereof in odd numbered calendar years and for the second half thereof in even numbered calendar years – and for the purposes of these orders that long summer holiday period is defined to commence at 5.00 p.m. on 26 December in each calendar year;

   (e)from 5.00 p.m. on 24 December until 1.00 p.m. on 25 December in all even numbered calendar years;

   (f)from 1.00 p.m. on 25 December until 5.00 p.m. on 26 December in all odd numbered calendar years;

   (g)from 5.00 p.m. on the day prior to the Sunday of Father’s Day until 5.00 p.m. on Father’s Day;

   (h)on each of the children’s birthdays and on the father’s birthday from the conclusion of school until 5.30 p.m. if a school day and otherwise from 10.00 a.m. until 2.00 p.m. if not a school day.

3. THAT the times specified in the preceding order shall be suspended for the following times:

   (a)from 5.00 p.m. on the day prior to the Sunday of Mother’s Day until 5.00 p.m. on Mother’s Day;

   (b)on the children’s birthdays and the mother’s birthday from the conclusion of school until 5.30 p.m. if on a school day and from 10.00 a.m. until 2.00 p.m. if not on a school day.

4. THAT the mother shall sign all documents and do all acts and things properly required to authorise any school attended by each of the children to provide to the father, and his expense, copies of all school reports, newsletters and similar documents of and concerning the children.

5. THAT any communication between the mother and father required by these orders shall be undertaken by e-mail or SMS and for this purpose both parties will at all times ensure the other party has an appropriate e-mail address and telephone number for the purposes of receiving SMS messages.

6. THAT the children be at liberty to telephone whichever parent they are not living with at any time and each parent do all things necessary and co-operate with the children to ensure that they are able to make such reasonable telephone calls.

7. Pursuant to s 62B and s 65DA, 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 Fact Sheet a copy of which is annexed to these orders.

8. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

IT IS NOTED:

A.THAT the above orders were agreed to by all parties in the hearing of a defended children and parenting dispute.  There are continuing disputes and the hearing will proceed and resolve the issue of sole or shared parenting and other specific issues.

B.THAT the signed minutes of consent orders, executed on 18 November 2008 by the parties remain upon the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6729 of 2007

MS MASON

Applicant

And

MR WILSON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Mason & Wilson and the Independent Children's Lawyer was listed for a defended hearing before me commencing yesterday, Tuesday, 18 November 2008.  Mr Howe of counsel appears for the mother, the father appears in person and Mr Curtain of counsel appears for the Independent Children's Lawyer, Mr David Edney, solicitor. 

2. I have had a significant involvement as the Judge Manager in this case over a lengthy period and for a number of court hearings.  I have made various orders for, and in the best interests of the two children J born in July 2001 and N born in November 2003.    

3. When the matter commenced before me yesterday, all parenting and children's issues, were alive.  At the commencement of the case I spent some time in endeavouring to ascertain the orders sought by the mother and father and the affidavits relied upon in support of those orders. 

4. The mother's case was relatively clear.  With the leave of the court she filed an updated statement of orders sought which is now document 52 on the court file.  She sought orders that she have sole parental responsibility for both children, that the children live with her and that they spend time with their father as stipulated in her document.  There were additional specific issues identified by the mother.  Primarily the mother relied upon her affidavit filed 11 November 2008, document 53 in the court file; the affidavit of her partner, Mr B, filed 12 November 2008, document 54 in the court file, and her earlier affidavit filed 13 October 2008, document 48 in the court file.  Of course, there are many earlier documents filed by and on behalf of the mother, but they were primarily involved in interim proceedings and I have not been asked to read or incorporate any evidence in those documents in this continuing defended hearing.

5. As to the father, I likewise requested that he identify the documents that he relied upon.  It is perhaps fair comment that he was a little disorganised in the documents he had before him, but eventually we ascertained that his orders sought were substantially those contained in his handwritten response to the initiating application of the mother.  His document was filed 14 November 2008 and is document 55 in the court index. 

6. In my discussions with him and in matters he relayed to the court, there was some variation in the time spent with orders and other specific orders that he sought and I have accepted his response as varied by his oral requests to the court yesterday.  By way of his evidence the father relied upon his affidavit 14 November 2008, document 56 in the court file.  Additionally he relied upon document 47 which is a substantial handwritten affidavit filed 29 September 2008 and I further permitted him to rely upon his earlier affidavit filed 9 April 2008, document 30 in the court file. 

7. Again, for the husband there were any number of earlier affidavits that were specific to various interim applications before the court.  Some of those the father initially sought to rely upon, but subsequently and after some level of discussion with the court he acknowledged that they were specific to earlier applications and the result is that it is these three affidavits that I have identified that I have accepted on the basis of what will be the evidence, together with the further oral evidence of the father and other witnesses and, of course, the mother. 

8. The Independent Children's Lawyer prepared a very useful chronology of events in this long and complicated matter.  That document is identified as number 57 in the court index.  At a stage when all children and parenting issues were before the court the Independent Children's Lawyer proposed to rely upon the initial affidavit of a consultant psychiatrist, Mr G, and the court was advised that this report, initially dated 12 July 2007 would be updated by evidence given by telephone during this hearing. 

9. Dr A had filed a report dated 23 June 2007 following upon a request for an assessment of the mother and her psychiatric state.  That affidavit is before the court, as document 13 on the court index, and it was filed 19 July 2007 and it is that the father desires to have that before the court and to ask meaningful and updated questions of Dr A, if he is available to give evidence. 

10. Dr P had initially prepared as a psychologist, a report dated 9 July 2007.  That report was obtained at the request of the father's previous solicitor and was a report examination and observation of the father and his behaviour and character.  Subsequently an updated report has now been tendered to the court and that is marked as exhibit “ICL1” in these proceedings.  That document has just been handed to me and I have not yet had the opportunity to read the document in full.  I am advised that evidence will be given on the remaining issue in this case which I will shortly identify. 

11. Mr U, is a Family Consultant, in the full‑time employ of Family Court.  He has prepared two substantial reports in this matter, primarily concerning the welfare and best interests of the children.  The first report is dated 25 March 2008, the second dated 22 August 2008.  I have had the benefit of reading both of those reports and indeed, in my prior involvement in this matter in earlier applications, I had read the earlier report at that time. 

12. Yesterday the matter commenced, as it was listed, on all issues.  At the commencement of the case I endeavoured to ascertain the specific orders as to the time to be spent by the father with the children.  What became clear was that there was little difference in the actual times as offered by the mother and requested by the father.  The starting positions can be identified from their court documents filed.  In reality and after allowing leave to counsel for the mother to amend orders sought, the reality became a block period of four or five nights and for what nights and when there would be any progression from four nights to give nights.  Of course, at all times other significant matters remain in dispute. 

13. The primary dispute then outstanding in this case is whether there should be an order for the mother to have the sole parental rights for the children or whether, as the father would request, they are shared on an equal basis as provided for in the Family Law Act.

14. The other continuing issues remain as to changeover, both the manner, the venue and the appearance of both parties, one in the presence of the other.  There also remains a real issue as to the duty to notify the other party of any serious medical emergency or other definition of that phrase. 

15. What, therefore, occurred yesterday was that Mr U, Family Consultant, was available and he offered his services to the parties and with the very specific involvement of both the Independent Children's Lawyer and their counsel.  Accordingly, I permitted the matter to be stood down and out of court and agreement was reached and consent orders were requested on certain specific aspects of this case.  I was handed executed minutes of orders.                 

16. Yesterday I indicated to all parties that I would make the orders at the conclusion of the case in one continuous document.  I have, however, reflected, given the continuing and specific legal issues to be determined and the available timetable.  If both parties and Mr B are to give evidence and various doctors, this matter may or may not conclude in the next two available days.  A reserve judgment may take some weeks, as I am rostered to be out of Melbourne and not sitting for the second and third week of December. 

17. I have, therefore, reflected and have determined that I should adopt the approach requested by the parties and make all consent orders on matter that are by consent and otherwise immediately proceed to hear the balance of the case.

18. I am, of course, fully aware of the factual back ground of this case from the prior hearings, but more particularly from the affidavits and Mr U’s comprehensive report.  I clearly identify that the ongoing hearing will resolve by judgment the determination of the parental responsibility issue for both children and the other two issues identified. 

19. The orders agreed by the parties and with the active involvement of the Independent Children’s Lawyer provide for both children to live with the mother and to spend time and communicate with the father at designated periods.  I conclude that these orders are in the best interests of the children.  I am particularly alert to the provisions of the Family Law Act 1975 applicable to their best interests and I have considered both the paramount and additional considerations in the agreement of the court to accept the consent orders.

20. Given that the parties have reached a settlement and have shown much commonsense in arriving at that settlement, I propose now to dictate those orders in the presence of the parties, in the exact words that they have signed off on and have those orders made this day.  Simply because they were not formally pronounced yesterday, I will make the orders as of today.  That will give certainty to the parties and, if there is any delay, they will know that these orders do operate.   

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: