MAWSON & MAWSON

[2012] FamCA 172

FAMILY COURT OF AUSTRALIA

MAWSON & MAWSON [2012] FamCA 172

FAMILY LAW - CHILDREN - Consent Orders - Where the parties consent to Orders finalising the matter - Where those Orders are in the subject child's best interests

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Mawson

RESPONDENT: Mr Mawson

INDEPENDENT CHILDREN’S LAWYER: Mr P Dooley

FILE NUMBER: BRC 12189 of 2007

DATE DELIVERED: 21 March 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 21 March 2012

REPRESENTATION

COUNSEL FOR THE RESPONDENT: Ms Neill

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ashcroft

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

Orders by Consent

1. All previous Orders be dismissed.

Parental Responsibility

1. That the Mother have sole parental responsibility for the care, welfare and development of the child of the marriage namely, J born … June 2005 for education and medical matters.

2. That the Mother and the Father have shared parental responsibility for the care, welfare and development of the child in relation to cultural matters and her Maori heritage.

3. That for the purpose of Order 2 the Mother is to consult with the Father about decisions to be made in the exercise of the Mother’s sole parental responsibility as follows:

   (a)       The Mother shall inform the Father about the decision that she intends to make;

   (b)       That the Mother and the Father shall consult with each via the Communication Book in paragraph 19 and 20 of these Orders about the issues which are required to be decided in the exercise of the Mother’s sole parental responsibility;

   (c)       That the Mother and the Father shall make a genuine effort to come to a joint decision.

1. That notwithstanding the provisions of Orders 6, 7 and 8:

   (a)       The mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her;

   (b)       The Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.

Living Arrangements

1. That the child live with the mother.

2. That the child spend time with the Father commencing Sunday, 25 March 2012:

   (a)       each consecutive Sunday for four (4) hours between 12.00 noon and 4.00 pm for six (6) weeks thereafter; then

   (b)       each alternate weekend from 10.00 am Saturday to 4.00 pm Sunday for six (6) alternate weekends; thereafter

   (c)       each alternate weekend from 4.00 pm Friday to 4.00 pm Sunday;

3. From the commencement of the 2013 school year the Father’s alternate weekend time with the child as set out in Order 7(c) above, shall extend to the commencement of school on Monday morning provided that if the Father is not able to take the child to school on the Monday then he will notify the Mother and in that event he will return the child to the mother at 4:00pm on Sunday.

Time on Public holidays & Pupil-free days

1. That in the event that the Monday immediately following a weekend on which the child is to spend time with the Father is a public holiday or pupil-free day then the Father will return the child to the Mother at 4:00pm on that Monday.

School Holidays

1. That until the end of the Easter school holidays in 2013 the Father shall  spend time with the child as agreed between the parties and failing agreement as follows:

   (a)       for the first week of the September / October 2012 Queensland gazetted school holiday period from 4:00pm on the day that school finishes to 4:00pm on the seventh (7th) day being the following Friday;

   (b)       for the first week and the fourth week of the December 2012/January 2013 Queensland gazetted school holiday period from 4:00pm on the day that school finishes to 4:00pm on the same week day the following week.

1. That commencing at the beginning of the June/July 2013 school holidays the child will spend time with the Father during the first half of the school holiday period and in every odd numbered year thereafter.

2. That commencing in 2014 and in every even numbered year thereafter the child will spend time with the Father in the second half of each school holiday period.

Special Days

Father’s Day and Mother’s Day

1. That the child will spend time with the Father on every Father’s Day from 9.00am to 5.00pm;

2. That the child will spend time with the Mother on every Mother’s Day from 9.00am to 5.00pm.

Birthdays

1. On the child’s birthday, the child will spend time with the Father from after school to 5.00pm on a school day or from 1.00pm to 5.00pm on non-school days.

Christmas

1. (a)       The child will spend time with the Father at Christmas from 2:00pm Christmas Day to 2:00pm Boxing Day in even numbered years commencing in 2012.

   (b)       The child will spend time with the Mother at Christmas from 2:00pm Christmas Day to 2:00pm Boxing Day in odd numbered years commencing in 2013.

Changeover

1. Unless otherwise agreed, changeovers shall take place at the residence of Ms R at … C Street, Town P on the Gold Coast with the parties to pay equal shares of Ms R’s fees for facilitating changeovers.

   (a)       In the event that Ms R is unavailable to supervise changeovers then changeovers shall occur at the G Contact Centre or at the E Contact Centre whichever is available.

   (b)       That the parties agree to attend and to participate in family dispute resolution in June 2013 to review the need for changeovers to occur at Ms R’s or at a contact centre and future changeover arrangements. 

Telephone Communication

1. That the Father shall communicate with the child by telephone each Wednesday, between the hours of 5.30 pm and 6.30 pm with the Father to initiate the telephone call to the child and the Mother shall ensure that:

   (a)       the child is available to receive the telephone call and speak with the Father;

   (b)       that the Father shall have uninterrupted telephone communications with the child and for that purpose;

   (c)       that the Mother is to provide to the Father a land line or mobile telephone number for the purpose of facilitating the Father’s telephone communication;

   (d)       that the Mother will advise the Father within seven (7) days of the mobile telephone number to be used for the child’s telephone communication with the Father;

   (e)       that the Mother shall ensure that the mobile telephone utilised for the purpose of this order is operational, remains fully charged, is switched on and is available for the child’s use;

   (f)       That the Mother will advise the Father as soon as reasonably practicable by using the communication book of any change to the mobile telephone number to be used for the child’s telephone communication with the Father.

Communication

1. That the parents use an electronic communication book in the form of a designated email and keep each other advised weekly regarding the health and welfare of the child and any extracurricular activities that the child may be involved in when the child is in that parent’s respective care.

1. That the parents also communicate with each other via SMS text message limited solely to:

   (a)       emergency matters involving the child or the parent;

   (b)       notice of a change to the landline or mobile telephone number in order [18] above.

Authority & Information

1. That the Father be at liberty to attend school extra-curricular activities at which parents are permitted to attend.

2. That this order is authority for either parent:

   (a)       to obtain information from and copies of records related to the child’s health from the child’s treating medical practitioner or health care provider or hospital;

   (b)       to obtain information from and copies of records related to the child’s school or education facility.

Emergencies

1. That each parent notify the other party as soon as reasonably practicable if there is a medical or other emergency concerning the child.

Passport

1. That neither parent shall remove the child from Australia before she is eight (8) years of age without written consent of the other party obtained 28 days prior to departure, and the parent travelling with the child shall provide to the other parent a copy of a return air ticket for the child, a flight itinerary for the child and a telephone number to contact the child if necessary while the child is overseas with the travelling parent to further facilitate telephone communications between the child and the absent parent at an appropriate time.

   (a)       That the child’s passport is to be held by Dooley Solicitors, Southport and shall be released upon the receipt of the signed authorities from each parent.

2. The parents will take all steps and sign all necessary documents to enable the child to obtain a passport.

Non-Denigration

1. That the Mother and the Father will not criticise or denigrate the other parent or a member of that parent’s family or allow another person to do so in the presence or hearing of the child.

1. That the Mother and the Father shall actively facilitate and encourage the child’s relationship with the other parent.

Alcohol and Drugs

1. That the Mother shall not consume alcohol to excess when the child is in her care.

2. That the Father shall not be under the influence of alcohol and will not consume alcohol when the child is in his care.

3. That neither parent shall be under the influence of illicit drugs or consume illicit drugs or expose the child to illicit drugs or allow any other person to do so while the child is in their care.

Cultural Heritage

1. That both parents shall use their best endeavours to promote the child’s Maori cultural heritage.

Psychiatric / Psychological

1. That the Father is to continue to engage with Dr Y of the O Medical Centre and comply with any referral made to Dr K, psychiatrist.

2. That the Independent Children’s Lawyer shall be discharged on 21 September 2012.

Notation

It is the intention of the parties to be the primary carer of the child when the child is spending time with them pursuant to these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mawson & Mawson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 12189 of 2007

Ms Mawson

Applicant

And

Mr Mawson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are parenting proceedings concerning the child, J, born in June 2005, in relation to which the parents have been able to reach an agreement with the Independent Children’s Lawyer, reflected in Orders that have been initialled by them and the Independent Children’s Lawyer and handed to me.

2. Section 60CC(5) of the Family Law Act 1975 (Cth) (“the Act”) provides that if the Court is considering whether to make an Order with the consent of all the parties to the proceedings, the Court may, but is not required to, have regard to all or any of the matters set out in subsections (2) and (3) of s 60CC of the Act. I do not propose to make any findings with respect to the s 60CC matters, and my comments which follow do not purport to be such findings.

3. I simply record, for the purpose generally, but also having regard to Rule 10.15A of the Family Law Rules 2004 (Cth), that this was a case that was the subject of a significant degree of expert evidence. That includes the Children and Parent Issues Assessment carried out by Ms Z, a Family Consultant, on 29 July 2010; an affidavit of Dr M, psychologist, filed 21 December 2010; and the Family Reports of Ms Z, Family Consultant, dated 15 July 2011 and 23 February 2012 respectively.

4. My attention was also directed by the Independent Children’s Lawyer to what appears from subpoenaed documents obtained from Relationships Australia, and in particular, observations made as per an observational report provided on 6 March 2012. It is clear enough that J presents as an intelligent and well-behaved six year-old, and in that respect is a credit to both of her parents. Having regard to the evidence I have briefly referred to, I am satisfied that the Orders that the parties have been able to agree upon should be made in J’s best interests, and I now make Orders in terms of the Orders as reflected in the Minutes of Consent initialled by the parties and by the Independent Children’s Lawyer and now initialled by me and placed with the file.

5. I make the Orders as set out at the commencement of these reasons.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 March 2012.

Associate: 

Date:  23 March 2012