Mckenzie and Mckenzie

[2013] FamCA 1098

FAMILY COURT OF AUSTRALIA

MCKENZIE & MCKENZIE [2013] FamCA 1098

FAMILY LAW – PARENTING

APPLICANT: Mr McKenzie

RESPONDENT: Ms McKenzie

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2785 of 2012

DATE DELIVERED: 10 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Johns J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Brown

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Jenkins

SOLICITOR FOR THE RESPONDENT:

Orders

1A.That all previous parenting orders of this Court and the Federal Circuit Court be discharged.

1. That the Husband and Wife each have shared parental responsibility for the children of the marriage, B born … 2006 and C born … 2009 (“the children”).

2. That the children live with the Wife and the Wife be permitted to reside with the children in the D Town area.

3. That the children spend substantial and significant time with the Husband as follows:

   (a)On Wednesday 11 December 2013 from the conclusion of school or kindergarten until 7.00pm.

   (b)In a two week cycle commencing Friday 31 January 2014, as follows:

   (i)      In week 1, from after school or 3.00 pm on a non-school day on Friday (from 31 January 2014) until the commencement of school on Tuesday (from 4 February 2014); and

   (ii)     In week 2, from the conclusion of school or kindergarten on Wednesday (from 12 February 2014) until 7.30pm; and

   (iii)    Such further and other times as agreed between the parties.

   (c)Commencing Friday 18 July 2014, the husband’s time with the children as set out in paragraph 3(b) herein be varied and the Husband thereafter spend substantial and significant time with the children, in a two week cycle, as follows:

   (i)      In week 1, from after school or 3.00 pm on a non-school day on Friday (from 18 July 2014) until the commencement of school on Wednesday (from 23 July 2014); and

   (ii)     In week 2, from the conclusion of school on Wednesday (from 30 July 2014) until 7.30pm.

   (d)(i)    During their school term holidays equally, from the conclusion of school on the last day of school term until the middle day of the school holiday period, and if no middle day then 12 noon the following day, with the Husband to have the first half of the school term holidays in even number years and the second half in odd numbered years; and

   (ii)     During their long Summer holidays in 2013 and each alternate year from the last day of school term for two weeks, with the Wife to have two weeks thereafter, with the remainder to be divided equally with the Husband to have the first half of the remainder.

   (iii)    During the long Summer holidays in 2014 and each alternate year from the last day of school term with the Wife to have the first two weeks and the Husband to have the second two weeks and the remainder be divided equally with the Wife to have the first half of the remainder save that the children be returned two days prior to the commencement of school.

   (iv)    The commencement of the Husband’s time for the 2013 long Summer holiday shall commence at 6.00pm on 18 December.

   (e)On special days, as follows:

   (a)On Father’s Day weekend (if the children would not otherwise be with the Husband), from the conclusion of school on the Friday preceding Father’s Day, until the commencement of school the Monday following Father’s Day, provided that:

   (i)If the Father’s Day weekend falls on a weekend that the children would be living with the Wife then the children spend the following weekend with the Wife in substitution for her missed weekend; and

   (ii)That if the children would not otherwise be with the Wife, the children spend the Mother’s Day weekend with the Wife from the conclusion of school on the Friday preceding Mother’s Day to the Monday morning with the Wife, and if the Mother’s Day weekend falls on a weekend that the children would otherwise be spending with the Husband then the children spend the following weekend with the Husband in substitution for his missed weekend.

   (b)From 3.00pm Christmas Eve to 3.00pm Christmas Day in 2014 and each alternate year thereafter, and from 3.00pm Christmas Day to 3.00pm Boxing Day in 2013 and each alternate year thereafter, and the Wife spend time with the children from 3.00pm Christmas Day to 3.00pm Boxing Day in 2014 and each alternate year thereafter and from 3.00pm Christmas Eve to 3.00pm Christmas Day in 2013 and each alternate year thereafter.

   (c)On the children’s, and their parents’ birthdays as follows:

   (i)The children spend time with the parent with whom they are not living at the time of a parent’s birthday or the children’s birthday, for a period of 9 hours if on a weekend or non-school day, as agreed but failing agreement from 10.00am until 7.00pm, and for a period from the conclusion of school until 7.00pm if the birthday falls on a school day, provided that the parent with whom the children are not living at the time of the birthday collect the children from school at the commencement of their time with the children and return the children to the care of the other parent at the conclusion of the time.

   (d)At Easter from after school Maundy Thursday until 5.00pm Easter Monday in even years with the Wife to have the same Easter period in odd years.

   (e)Such other times as may be agreed between the parties.

4. In the event that changeover does not take place at the children’s school or kindergarten or if not applicable, changeover take place at D Town Railway Station or otherwise as agreed.

5. That each of parties and their respective servants and/or agents be and are hereby restrained from:

   (a)Denigrating, abusing, belittling or otherwise criticising the other in the presence or hearing of the children;

   (b)Discussing the family law proceedings or any matters related thereto with the children;

   (c)Using physical discipline on the children; and

   (d)Using any electronic device to record the children’s telephone conversations with either parent or to record the other parent at changeover.

6. That each of the parties facilitate communication by telephone, SMS and/or email between the children and the other parent at any reasonable time (if the children express a wish to contact the parent with whom they are not living at the time).

7. The parents forthwith do all acts and things necessary to enrol the children at E School or such other school as agreed.

8. That both parties be and are hereby entitled to receive copies of each of the children’s school and childcare centre/kindergarten reports, notices and bulletins and these orders shall be sufficient authority to the school/childcare centre or kindergarten to provide such documents to each parent.

9. That if necessary each of the parties authorise the children’s school and/or kindergarten (as the case may be) to provide to the other parent, copies of the children’s school reports, newsletters, bulletins, photographs, notices and such other material as may be provided to parents from time to time.

10. That each of the parties be permitted and authorised and entitled to attend parent teacher interviews, school concerts, assemblies, breakfasts, luncheons and such other activities and events parents are permitted to attend from time to time.

11. That the Husband and Wife keep each other advised of the full particulars of any medical practitioners, dentists, optometrists, counsellors, therapists, tutors or such other professionals who treat or consult with the children from time to time and each party hereby has authority by reason of these orders to speak with all such practitioners to obtain information about any such treatment or consultation(s).

12. That each party forthwith advise the other parent of any emergency medical or health treatment required by the children as soon as practicable, such notification to occur by SMS text message.

13. That in the event that the children or either of them is admitted as an in-patient to any hospital each of the Husband and the Wife is entitled to visit the children at all reasonable times.

14. That both the Husband and Wife each advise the other parent as to any change to their current address or telephone number within 48 hours of such a change occurring.

15. That subject to compliance with order 16 hereof, each of the Husband and the Wife be entitled to travel overseas or interstate with the children when the children are in that parent’s care.

16. That in the event that either party wishes to travel overseas or interstate with the children in accordance with paragraph 15 above, the party wishing to do so shall provide to the other party 28 days prior notice in writing of any intention to travel overseas and 7 days notice of any intention to travel interstate and in particular provide to the other party a copy of the return flight manifest, detailed itinerary and contact details for the children in respect of the proposed travel and for such purpose the children’s passports be provided by the parent holding same to the travelling parent in order to facilitate such overseas travel and prior written consent be required if the parties travel occurs in the other party’s time with the children.

17. In the event either party is unable to care for the children for a period of 48 hours or more, the other parent be given the first right of refusal to care for the children.

18. The parties continue to use a communications book for the purposes of communicating parenting issues with respect to the children and both parties be and are hereby restrained from texting or emailing the other parent about matters that are to be the subject of communications in the communications book, save in the event of an emergency.

NOT BY CONSENT:

1. That the Husband and the Wife attend upon Ms F, Family Consultant, or such other family consultant as recommended by Mr G, for the purpose of therapeutic counselling to assist them to effectively co-parent the children and to better communicate and improve the existing communication difficulties between them, such counselling to occur on the following basis:

   (a)The first such appointment to be scheduled within one month of the Wife’s move to the D Town area;

   (b)The Husband to meet the cost of the first two sessions and thereafter the cost of such counselling to be borne by the parties equally.

2. The frequency of such appointment to be upon the recommendations of the family consultant.

3. That pursuant to s 65(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McKenzie & McKenzie 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 MELBOURNE

FILE NUMBER: MLC 2785 of 2012

Mr Mckenzie

Applicant

And

Ms Mckenzie

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. I have before me today competing parenting applications seeking orders in relation to parenting arrangements for the two children of the marriage, B, aged almost seven years, she being born in 2006, and C, born in 2009 (aged four years).  This matter has a long history before the court.  Parenting proceedings have been on foot now since March of 2012.  It is evident from the trial affidavit material that has been filed by both parties that there has been many difficulties between the parties since their separation in March, 2012.

3. There have been intervention order proceedings.  There have been numerous interim applications before the court, both with respect to financial matters as well as parenting matters.  To their credit, the parties have resolved their financial issues and the majority of the parenting issues, and I will make orders by consent in the terms of the minute of order that is signed by the parties this day. 

4. In addition to those consent arrangements, an issue has arisen between the parties as to the application by the husband that there be provision within the parenting orders for the parties to attend upon Ms F, Family Consultant, for the purposes of therapeutic counselling.

5. It is submitted on behalf of the father that the purpose of that counselling is to assist the parties with their future communication and to hopefully assist them to better co-parent their two young children.  The mother opposes the order.  It is submitted on her behalf that she is already undertaking therapeutic counselling and she does not want further counselling to undermine that process.  Further, it is submitted that she cannot afford further counselling.

6. What is evident from the material is that the parties have had enormous difficulties in communicating with each other, notwithstanding recommendations for the use of communication books and the like.  The parties have floundered in this area. 

7. In my view, and having regard to the provisions of section 60CC of the Family Law Act, it would be in the children’s best interests if the parties were able to communicate more effectively.

8. The utilisation of a professional with experience and training in this area can only assist the parties.  Accordingly, I propose to make an order for such counselling. 

9. An issue that has arisen, and what is said to me by counsel for the wife, is that the costs of such counselling may be prohibitive to the wife being able to participate in the counselling sessions.  She points to the fact that the wife is already undertaking personal therapeutic counselling upon the recommendations of Dr H.  The concern raised by the wife is that she will not have additional funding pursuant to her mental health plan to accommodate joint counselling with the husband.

10. I am mindful of those concerns.  However, it is my view that it is important that the wife make contribution to the cost of the counselling.  What I propose is that the husband meet the first two sessions of counselling, and thereafter the wife be required to meet one half of the costs of counselling.  I make those orders on the basis that it is anticipated that the wife will receive a property settlement in the future.  However, her home is being sold this weekend, and it may be some period of time before she receives the fruits from that sale, so it is on that basis that I will make those orders.

ORDERS DELIVERED

1. Otherwise, I have carefully read the proposed orders that are sought to be made by consent.  In my view, having regard to the trial affidavit material and the Family Report of Mr G, having read his two reports, it is clear to me that these orders provide for the children very well.  They clearly accord with the recommendations of the family consultant, and I am satisfied the orders sought are in the children’s best interests.   . 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 10 December 2013.

Associate: 

Date:  10 December 2013