McNaught and Shearing

[2010] FamCA 871

FAMILY COURT OF AUSTRALIA

MCNAUGHT & SHEARING  [2010] FamCA 871

FAMILY LAW – CHILDREN – Magellan Directions List -  Minutes of consent ordered – matter finalised

Family Law Act 1975 (Cth) ss 69ZW
Family Law Rules 2004 (Cth)

APPLICANT: Mr McNaught

RESPONDENT: Ms Shearing

INDEPENDENT CHILDREN’S LAWYER: Ms Stewart

FILE NUMBER: BRC 10724 of 2008

DATE DELIVERED: 8 September 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 8 September 2010

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: Bushnell & Power Lawyers

COUNSEL FOR THE RESPONDENT: Mr Cooper of Counsel

SOLICITOR FOR THE RESPONDENT: R J Cutler Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stewart of Carter Farquar Lawyers

Orders

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children's Lawyer be discharged.

4. Pursuant to s 65DA(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 in these orders.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file

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

Minutes of Consent

IT IS ORDERED BY CONSENT THAT

1. The child of the marriage between the parties, namely, [M] born […] February 2000 live with the mother.

2. The parties have equal shared parental responsibility for the child.

3. The child spend time and communicate with the father at all times as may be agreed in writing between the parties but failing agreement as follows:

   a.From after school Friday to before school Monday each alternate weekend, with the father to collect the child from [B] State Primary School and return the child to the said school, or if not in school session to the mother’s residence.

   b.For telephone contact, for which the child will be afforded privacy:

   i.Monday between 7.30pm and 8.30pm with the father to initiate the call;

   ii.Wednesday between 7.30pm and 8.30pm with the child to initiate the call.

   c.For half of each school holiday period with the father to spend time with the child on the first half of each school holiday period in even numbered years and the second half of each school holiday period in odd numbered years.

   d.For a period of not less than 2 hours on the child’s birthday should the child’s birthday occur on a week day or alternatively for half of the child’s birthday should the birthday occur on a weekend.

   e.Should the Father’s Day weekend fall on a weekend when the father is not due to spend time with the child, the father shall forfeit that weekend which he was due to spend time with the child immediately prior to the Father’s Day weekend and spend time with the child on the Father’s Day weekend in lieu of that which he forfeited.

   f.Should the Mother’s Day weekend fall on a weekend when the father is due to spend time with the child, the father shall forfeit the Mother’s Day weekend and spend time with the child on the weekend immediately prior to the Mother’s Day weekend in lieu of that which he forfeited.

   g.The father shall spend time with the child from 9am Christmas Eve until 2pm Christmas Day in even numbered years and from 2pm Christmas Day until 5pm Boxing Day in odd numbered years.

4. Each parent is restrained from denigrating the other parent or any member of the other parent’s family within the child’s hearing.

5. Each parent shall notify the other parent immediately in the event of any serious illness or injury affecting the child whilst they are in that parent’s care.

6. Each parent shall keep the other informed of their landline and mobile telephone numbers and shall notify the other parent within 24 hours of any change.

7. Each parent shall keep the other informed of their residential address and shall notify the other parent in writing at least 14 days prior to any change.

8. These orders shall be sufficient authority for any educational institution or child care centre to provide either parent any documentation or information regarding the child’s education including school organised extracurricular activities.

9. These orders shall be sufficient authority for any health professional, medical clinic or hospital upon whom the child attends to provide either parent any documents or information regarding the child’s health.

10. The parties shall not change the residence of the child from a region within 100 kilometres of [H] General Post Office without the prior written approval of both the mother and father or an Order of the Court.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10724  of 2008

MR MCNAUGHT   

Applicant

And

MS SHEARING  

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before me in the Magellan directions list. The father appears for himself, but has previously been represented by legal practitioners.  The mother is represented by solicitor and counsel, and the court has had the benefit of assistance from an independent children’s lawyer. 

2. Minutes of consent have been agreed between the parties and the independent children’s lawyer. 

3. On their face, the minutes are, in the view of the court, appropriate to be made in the best interests of M, born in February 2010, who is now aged about 10 ½.  This matter was placed in the Magellan directions list initially because of allegations that had been the subject of investigation both by the independent children’s lawyer and by the Department of Communities (Child Safety).

4. The court has had assistance from the department by reason of them providing a report pursuant to s 69ZW of the Act. That report records the concerns evident from the department’s file, including a concern dated 15 December 2010 that her partner was violent and a risk to the children. 

5. It seems clear on the evidence before the court, and no one asserts to the contrary, that the mother is no longer in a relationship with the partner referred to in that report.

6. An allegation of sexual harm, which complies with the definition of “abuse” within the meaning of the Family Law Rules and the Family Law Act, relates to the potential for sexual harm to have occurred at the instance of the mother.  The s 69ZW report records an outcome in that respect of “unsubstantiated” and the report evidence’s a rationale as follows: 

   [The child] was interviewed and made no disclosures of sexual abuse or harm of any nature.  The mother stated that she was no longer in a relationship with [DN] (other information unknown) [conceded to be an error – the reference should be to “DC”] who was alleged to have sexually abused [M]. [M] lives with her mother and has fortnightly contact with father under a Family Court order.

7. Additional concerns were raised during the context of the proceedings in respect to the potential for the mother to have an alcohol problem.  The section 69ZW report also refers to that issue and says:

   The mother was interviewed and stated that she used to have an alcohol problem but is managing well and is engaged with a psychologist from […].

8. Further, Child Safety officers attached to the Department observed the house to be clean and tidy with sufficient food and appropriate bedding for the subject children.  The reasons for the outcome being recorded as unsubstantiated are evident on the face of the report.

9. Ms Stewart, who appears for the ICL in this matter, also properly refers to the fact that a number of subpoenae have been issued by the independent children’s lawyer and that the documents produced pursuant to those subpoena from appropriate authorities and entities suggest that these orders can be made, despite the allegations that initially had the matter placed in this list. 

10. Ms F, a family consultant attached to the Family Court at Brisbane, interviewed the parties and reviewed the subpoenaed material and the departmental investigations, earlier referred to. 

11. It is noted that Ms F records, as part of her recommendations, that so long as the father undertakes return of the child to the mother, that M spend alternate weekends and time with her father from after school Friday till before school Monday.  Significantly, Ms F recommended that M remain living with her mother. 

12. It seems to me, then, that the minutes of consent agreed between the parties and signed by the independent children’s lawyer record orders which, in all of the circumstances of this case, are in the best interests of the child.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 8 September 2010.

Associate: 

Date:  29 September 2010