Mills and Raymond

[2012] FamCA 825

FAMILY COURT OF AUSTRALIA

MILLS & RAYMOND [2012] FamCA 825

FAMILY LAW – CHILDREN – Orders by Consent – with whom a child spends time – order that mother have sole parental responsibility for child – order that child spends no time with the father

Family Law Act 1975 (Cth)

APPLICANT: Ms Mills

RESPONDENT: Mr Raymond

INDEPENDENT CHILDREN’S LAWYER: Lehmann Featherstone

FILE NUMBER: CSC 798 of 2009

DATE DELIVERED: 13 September 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 13 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Blishen

SOLICITOR FOR THE APPLICANT: Arnell & Cooper

COUNSEL FOR THE RESPONDENT: Ms Mayes

SOLICITOR FOR THE RESPONDENT: Bruce Gillan

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Wilson

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Lehmann Featherstone

Orders

1. BY CONSENT the mother’s application filed 19 August 2011 is dismissed.

2. BY CONSENT orders made 15 January 2010 be varied to:-

   (a)    discharge the order for shared parental responsibility for the child T born … November 1998 (“the child”); and

   (b)    discharge orders that that child spend time with Mr Raymond (“the father”).

3. 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.

4. All other outstanding applications be dismissed.

IT IS DIRECTED

1. 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.

2. The Independent Children’s Lawyer forward to the Child Protection Authorities a copy of:

   (a)    the report of Mr P; and

   (b)    a copy of the transcript of the proceedings dated 7 October 2011 before the learned Magistrate Brassington.

3. The appointment of the Independent Children’s Lawyer be discharged twenty eight (28) days from the date of this order.

   IT IS NOTED

4. There is an application for costs made by the Independent Children’s Lawyer and that application is dismissed.

5. There is an application for costs made by the father and that application is dismissed.

   IT IS CERTIFIED

6. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mills & Raymond 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 CAIRNS

FILE NUMBER: CSC 798 of 2009

Ms Mills

Applicant

And

Mr Raymond

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are proceedings between Ms Mills (‘the mother’) and Mr Raymond (‘the father’) in relation to two children of their relationship.  L, who was born in July 2003 and is currently, aged nine and M, who was born in January 2009 and is currently aged three.  An order was made in this Court by a registrar in chambers on 15 January 2010 in relation to the two children I have referred to, and a child of the mother’s previous relationship, T, who was born in November 1998.

2. In relation to T, she provided information to a family reporter and by consent, I am to make orders that the requirement for her to spend time or live with the father or that he had parental responsibility, be discharged and I propose to make that order by consent, today.  The mother filed proceedings in the Federal Magistrates Court and those proceedings were transferred to this Court seeking a change to the orders made in January 2010.  This arose after an alleged disclosure by T in July 2011, about something that allegedly happened in September the previous year.

3. The mother also arranged to take DVO proceedings which were discharged by a Magistrate.  There were significant issues between the parties and the matter was listed for hearing today.  A report had been prepared by Mr P, where he, in essence, recommended that the arrangements with regard to the boys, L and M continue.  At the commencement of the hearing the Independent Children's Lawyer indicated to me that, save and except for the orders with regard to T, she would be submitting that Rice & Asplund[1] would apply and that it was the view of the Independent Children's Lawyer that the orders made in January 2010 insofar as M and L were concerned, ought to remain in place. 

   [1] (1979) FLC-725.

4. Having regard to the evidence as it presently stands, at the best, the application ought to be dismissed under those principles.  That application was supported by counsel for the father, who also raised issues about the allegations of violence prior to the making of the orders.  These reasons are not to be taken as, in any way, endorsing or not endorsing the submissions made by counsel for the father in that regard.

5. The mother was represented and her solicitor took time to reflect on the evidence and clearly so did the mother and to her credit, she gave instructions that, as the state of the evidence as it presently stands, they could not win that argument, it would not be appropriate for me to make an order other than that sought by the Independent Children's Lawyer.  I accept that submission.  I will be making some orders, as I have said, however, one is in relation to T, which will by consent and secondly, I will be directing the Independent Children's Lawyer to forward to the Child Protection Authorities, a copy of the report of Mr P and a copy of the transcript of the proceedings in the Magistrates Court. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 13 September 2012.

Associate:     

Date:              13 September 2012