Merton and Merton

[2007] FamCA 281

FAMILY COURT OF AUSTRALIA

MERTON & MERTON [2007] FamCA 281

FAMILY LAW - CHILDREN – Complex application in Long Defended List – Resolved between the parties and consent orders made – Emphasis given to role each party to play in the children’s lives.

S 60CA; s 60CC(1); s 60B Family Law Amendment (Shared Parental Responsibility) Act 2006

Johnson v Johnson (2000) 201 CLR 488

APPLICANT: Mr Merton

RESPONDENT: Mrs Merton

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 258 of 2005

DATE DELIVERED: 19 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 19 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Whitchurch

SOLICITOR FOR THE APPLICANT: Perry Weston

COUNSEL FOR THE RESPONDENT: Mr Ramsay

SOLICITOR FOR THE RESPONDENT: Oakleys White

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Eidelson

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Cathleen Corridon

ORDERS

1. That the children of marriage an elder son born in January 1998, a younger son born in February 1999 and a daughter born in February 2001 live with the Wife.

2. That the Wife and Husband share the parental responsibility for the said children.

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

   (a)in each alternate week from Wednesday at the break up of school until the following Monday at the start of school, commencing 14 March 2007.

   (b)for one half of each school term holiday failing agreement, the first half, to commence from school break up on the last day of term until 5.00pm on the second Saturday of the term holidays.

   (c)for one half of the summer holidays, to be spent in non-consecutive periods of one week.

   (d)at Christmas, from 10.00am on 24 December 2007 until 10.00am on 25 December 2007, and from 10.00am on 25 December 2008 until 10.00am on 26 December 2008 and each alternate year thereafter.

   (e)on Father’s Day from 10.00am until the start of school on Monday, and in the event that the Husband’s contact herein occurs on Mother’s Day weekend, then his contact shall be suspended from 10.00am on same day.

   (f)such other contact as the parties may agree upon in writing.

4. (a)      that the Husband shall be available to care for the children during the periods which are stipulated herein for him to spend time with them.

   (b)in the event the Husband is not available to care for the children pursuant to Paragraph 4(a), then the children remain the Wife’s care.

5. That the Husband and Wife shall liaise with and consult with any medical or mental health expert or practitioner that the children regularly attend upon in relation to their:

   (a)       general health

   (b)       autism spectrum disorder

   (c)       intellectual disability

and comply with, to the best of their abilities in a consistent way, any treatment regime or management regime which is recommended save that any recommended medicine or vitamin regime is strictly complied with.

1. That the Husband and Wife shall ensure that the children are at all times transported in a vehicle, which properly accommodates all three children.

2. That 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 the 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 NOTED

That wherever possible each of the Husband and Wife equally contribute towards the costs of the children’s

(a)      medications

(b)therapy as required, including consultation with treating medical and other practitioners.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 258  of 2005

Mr Merton

Applicant

And

Mrs Merton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me in the Long Defended List of Cases.  It has been in the List for some time now and involves both child welfare and property matters.  The proceedings commenced this morning, with Mr Whitchurch appearing on behalf of the husband, Mr Ramsey for the wife and Mr Eidelson on behalf of the Independent Children's Lawyer.  All counsel have worked industriously and presented Minutes of Consent Child Welfare Orders which I mark Exhibit “A”.

2. By way of short background, the husband was born in April 1960 and is 46 years of age.  The wife was born in September 1960 and is also 46 years of age.  They were married in December 1997 and following unhappy differences, separated in October 2003.  There are three children of their union, an elder son, who was born in January 1998; a younger son, born in February 1999, and a daughter, who was born in February 2001. 

3. I have had the advantage of reading Case Outline Documents provided on behalf of each of the parties detailing their respective arguments.  I have also had the advantage of reading their helpful trial affidavits and the various affidavits relied upon by them.  In addition, and significantly, I have read the documents filed on behalf of the Independent Children's Lawyer, being the affidavit of Dr E filed 17 May 2006, Dr G, filed 8 November 2006, and that of Mr P, psychologist, filed on 11 January 2006.

4. The parties have adjusted the proceedings, despite what could be said to have been allegations and counter-allegations that may, if litigated, have brought into stark relief a very serious situation between them.  I was able to address the parties this morning under the umbrella of Johnson v Johnson (2000) 201 CLR 488 as to the advantages of resolution and how that can work to the advantage of the three children. This, they have done.

5. The principles governing the child welfare jurisdiction are now set out in the Family Law Amendment (Shared Parental Responsibility) Act 2006. In considering these consent orders, I must regard the best interests of the children as the paramount consideration. See s 60CA of the Act. In determining what is in the children's best interests, I have to consider those other matters set out in s 60CC(1) of the Act which are described as “primary” considerations and “additional” considerations.

6. The primary considerations are important.  The first is the benefit to the three children of having a meaningful relationship with both of their parents.  The second is the need to protect the children from physical or psychological harm from, being subjected to or exposed to abuse, neglect or family violence.

7. The Act indicates that these considerations are to be considered as having importance.  They are described as "primary", and as a note to s 60CC points out, are consistent with the first two objects of Part VII of the Family Law Act 1975 (as amended), set out in s 60B. Those objects, which I have explained to the parties this morning, ensure that the best interests of the children are met by having the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and to protect them from physical or psychological harm.

8. I also pointed out this morning that the principles underlying the Family Law Act 1975 emphasise that children have the “right to know and be cared for” by both their parents and have a “right to spend time on a regular basis” with and communicate with them on a regular basis.  I further emphasise the fact that both the husband and the wife “jointly share duties and responsibilities” concerning the care, welfare and development of their children and they should, where possible, “agree on their future parenting”.

9. In my view, the parties are to be congratulated in coming to this agreement.  I suspect, from what has been a pretty turbulent avenue down which they have travelled in the litigation pathway, they have come to a resolution now, with the assistance of the Independent Children's Lawyer that can only work to the best interests of their children. 

10. The orders are clear and it is my expectation that the future for these three children will be a positive one.  They are going to have the benefit of both their parents and I expect, although it will not be easy, I suspect, that in the future there will be cooperation and mutual trust between the two of them. 

11. With such a result, I have no doubt whatsoever that the children will prosper.  They have certain difficulties, expressed in the reports filed on behalf of the Independent Children's Lawyer, of which both parents are intimately concerned.  I congratulate them on having the commonsense, the dignity and the determination to come to this arrangement.  I certainly wish them both the best in the future.

12. I make orders in terms of Exhibit “A” and I direct the solicitors for the husband to engross the orders.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  28 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MERTON & MERTON