MCWATT & EASTHOPE

[2017] FamCA 109

FAMILY COURT OF AUSTRALIA

MCWATT & EASTHOPE [2017] FamCA 109

FAMILY LAW – Parenting – Undefended hearing – Where the father did not file an affidavit as directed – Where the father did not appear at the hearing – Orders made by consent as between the mother and the Independent Children's Lawyer

Family Law Act 1975 (Cth)

APPLICANT: Mr McWatt

RESPONDENT: Ms Easthope

INDEPENDENT CHILDREN’S LAWYER: Elizabeth Louise Rayment

FILE NUMBER: BRC 7761 of 2014

DATE DELIVERED: 27 February 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 27 February 2017

REPRESENTATION

THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT: Ms Walker-Munro

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rayment
ELR Law

Orders

IT IS ORDERED BY CONSENT (AS BETWEEN THE MOTHER AND THE INDEPENDENT CHILDREN’S LAWYER) THAT

1. The child, B born … 2001, (“B”) shall live with the father.

2. The children, C born … 2004 (“C”) and D born … 2006 (“D”) shall live with the mother.

3. The father has sole parental responsibility for the decisions relating to major long-term issues (as that term is defined in s 4 of the Family Law Act) concerning B.

4. The mother has sole parental responsibility for the decisions relating to major long-term issues (as that term is defined in s 4 of the Family Law Act) concerning C and D.

5. Each parent has responsibility for the decisions concerning the daily welfare of the children when they are in that parent’s care.

6. Prior to making any decision for the children in the exercise of sole parental responsibility (except for emergency situations) each parent shall consult with the other regarding that decision by:

   (a)Advising the other parent of the decision to be made and requesting the other party’s input within fourteen (14) days;

   (b)       Considering the other parent’s input;

   (c)       Advising the other parent of the decision made within seven (7) days.

Time

1. B shall spend time and communicate with her mother in 2017 from 16 December 2017 to 6 January 2018.

2. B shall spend time with her mother at all times as may be agreed but failing agreement for a minimum period of three (3) weeks of the Christmas NSW gazetted school holiday period in 2018/2019.

3. For the purpose of Order numbers 7 and 8:

   (a)The mother shall be responsible for arranging travel for B from B’s place of residence to the mother’s closest capital city airport at the commencement of time and the father shall be responsible for arranging travel for B at the conclusion of time from the mother’s closest capital city airport;

   (b)Each party shall provide to the other, no later than fourteen (14) days prior to the dates of B’s intended travel, evidence of fully paid travel arrangements.

Telephone and other communication

1. In the event the children or any of them should at any reasonable time whilst in the care of either parent, express a wish or desire to telephone or communicate with the other parent or siblings by any other means, then each parent shall allow the children to do so and shall provide such assistance to the children as they may require, and otherwise, the children shall communicate with the parent they are not living with by telephone or Skype (Facetime):

   (a)Each Monday and Thursday between 6.00 pm and 6.30 pm Queensland time, and if that is missed, then call the following night.

2. While the children are speaking with the other parent each parent shall ensure the children’s privacy.

Schooling

1. Both parents shall be permitted to liaise directly with the children’s schools to receive any notices, information, newsletters, school reports, order forms for the children’s school photographs, information about the child’s progress at school as well as parent teacher appointments, and information about school based extra-curricular activities involving the children and each parent is at liberty to attend any school event that parents are invited to attend.

2. This order be authority to the schools attended by the children to provide to the mother and the father copies of the school reports for the children, notices and invitations normally provided by the school to parents, to include photograph ordering forms and the mother and father will make their own individual arrangements with respect to ordering and paying for any such photographs of the children.

Health

1. Both parties shall keep the other informed in writing of the name, address and contact telephone number of any treating medical and allied health professionals for the children.

2. That the parties shall advise the other of any major medical condition or significant illness suffered by the children whilst in their care as soon as reasonably practical.

3. This order be authority to any doctor or other medical specialist upon whom the children may attend to provide to the mother and father individually all information they may request with respect to the children and copies of any reports arising at the cost of the requesting party.

Contact Details

1. Each party will advise the other parent of changes to their residential address and/or mobile telephone numbers and/or email address within 30 days of making any change to their current address which is more than 20km from where they are currently residing.

Injunctions

1. Pursuant to s 68B of the Family Law Act 1975 (Cth), each party be and is hereby restrained by injunction, from:

   (a)       Physically disciplining the children or any of them;

   (b)Denigrating, or causing the denigration of either parent to, or in the present of, the children or any of them or raising any matter which may reasonably cause, or be likely to cause, the children or any of them to think less of the other parent, or a member of the other parent’s household; and

   (c)       Involving the children in any discussion of these proceedings.

IT IS FURTHER ORDERED THAT

1. The Independent Children's Lawyer is discharged.

2. Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), 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 Fact Sheet attached hereto and these particulars are included in these Orders.

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 McWatt & Easthope 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 BRISBANE

FILE NUMBER: BRC 7761 of 2014

Mr McWatt

Applicant

And

Ms Easthope

Respondent

And

Independent Children's Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. I have read the family reports by Mr E that have been provided in this matter.  I have read the mother’s affidavit of evidence in chief that was filed in these proceedings pursuant to my trial directions.  Indeed, I have also read the affidavit that she filed more recently which deposes to having received a vile and abusive text message from the father after causing him to be served with her affidavit of evidence in chief in these proceedings. 

2. I note particularly that there is no appearance by the father today, nor did he file an affidavit of evidence in chief in accordance with the trial directions that I made in September last year, at which he appeared by telephone.  I am quite satisfied that he knew of the matter being set down for a final hearing today and that he was aware of directions I made in respect of the filing of further material, directions which he has clearly chosen to ignore. 

3. In all the circumstances, I consider that the orders agreed, at least between the Independent Children's Lawyer and the mother, both of whom are represented by counsel here today, the terms of which have been put into writing and signed by the Independent Children's Lawyer and the mother, are indeed reflective of what I would consider to be in the best interests of the children, particularly having regard to the need for the three girls to spend some time with each other to maintain, as well as can possibly be maintained in the circumstances, their sibling relationship.   

4. These orders provide for that and I make the orders that have been signed by the parties with the amendments I have made just a moment earlier.

5. It is disappointing that the father has chosen not to be a participant in the proceedings given it was his unwillingness to agree to terms in September last year that brought the matter back on today.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 February 2017.

Associate: 

Date:  2 March 2017