Mulenga and Mulenga

[2012] FamCA 151

FAMILY COURT OF AUSTRALIA

MULENGA & MULENGA [2012] FamCA 151

FAMILY LAW – CHILDREN – Judicial Settlement Conference settled by consent

Family Law Act 1975 (Cth)

APPLICANT: Mr Mulenga

RESPONDENT: Ms Mulenga

INDEPENDENT CHILDREN’S LAWYER: Ms Batenburg

FILE NUMBER: BRC 11154 of 2010

DATE DELIVERED: 16 February 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 16 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Ashcroft

SOLICITOR FOR THE APPLICANT: McVittie Legal

SOLICITOR FOR THE RESPONDENT: Ms Newton of Claire Newton Family Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Batenburg of SBA Family 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.

2. Pursuant to Section 65L(1)(b) of the Family Law Act 1975, a Family Consultant give any party to the parenting order such assistance as is reasonably requested by that party in relation to the carrying out of the parenting order, for a period of 12 months from today.

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 is discharged upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.

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.

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT

1.  That the Father Mr Mulenga (the ‘Father’) and the Paternal Grandmother Ms Mulenga (the ‘Paternal Grandmother’)  have equal shared parental responsibility for the child D born … July 2002 (the ‘Child’)

2.     That the parties are to consult with each other about decisions to be made in exercise of their equal shared parental responsibility as follows:

a.  They shall inform the other party of the decision to be made;

b.  They shall consult with each other on terms they agree;

c.  They shall make a genuine effort to come to a joint decision.

3.  That notwithstanding the provisions of Order 2:

a.    The Paternal Grandmother shall be responsible for the daily care, welfare and development of the child when he is living with or spending time with her;

b.    That the father shall be responsible for the daily care, welfare and development of the child when he is living with or spending time with him.

4.  That the Paternal Grandmother and father shall:

a.    Keep each other informed at all times of their residential address and landline/mobile telephone numbers;

b.    Keep each other informed of the names and addresses of any treating medical practitioner or other health professionals who treat the child and authorise those practitioners to provide the other party with information that they are lawfully able to provide about the child;

c.    Inform the other as soon as reasonably practicable of any medical conditions, significant health issue or illness suffered by the child. This order authorises any treating medical practitioner to release the child’s medical information to the other party.

5.  That the Paternal Grandmother and the Father authorise by this order the school attended by the child to give each of them information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that persons expense).

6.  That during the time the child is with either the paternal Grandmother or the Father they shall:

a.  Respect the privacy of the other and not question the child about the personal life of the other;

b.  Speak of the other respectfully;

c.  Not denigrate or insult the other in the presence or in the hearing of the child and do all things possible to ensure that others do not denigrate either the Paternal Grandmother or the Father.

1. That the child live with the Paternal Grandmother.

2. That the child spend time with the Father at all reasonable times as agreed between the Paternal Grandmother and the Father and in particular or failing any agreement as follows:

   a.For the Autumn, Winter and Spring school holidays, from the first day after the conclusion of each school term to the last Friday at the conclusion of each school holiday period;

   b.For one half of the Summer school holidays,  being:

   i.the first half in even numbered years from the first day after the conclusion of the school term;  

   ii.the second half in odd numbered holidays concluding three (3) clear days before the start of term 1 in each year.

   c.Any weekend the father is in the Town B region from after school Friday until 4.00pm Sunday upon giving the Paternal Grandmother forty-eight (48)  hours notice by telephone and/or SMS message

   d.At any other reasonable time that the Father visits Town B during school terms and the Father shall provide at least 48 hours notice to the Paternal Grandmother.

3. That the Father will collect the child from the Paternal Grandmother’s residence at the commencement of his time with the child during the school holidays and the Paternal Grandmother will collect the child from the Father’s residence at the conclusion of the Father’s time during the school holidays.

10.That in the event that the Father does not have transport available to collect the child at the commencement of his time upon giving the Paternal Grandmother forty-eight (48) hours notice, the Paternal Grandmother will deliver the child to the Father at the commencement of his time with the child and he will pay the Paternal Grandmother the sum of $30.00 towards her petrol expenses for delivering the child to him.

11.That the Father have telephone communication with the child all times as requested by the Child but at least each Wednesday between 7:00pm – 7:30pm with the Father to telephone the child on a mobile telephone number as nominated by the Paternal Grandmother.

12.That the Father and the Paternal Grandmother ensure that the child remains enrolled at S School.

13.That the Father and the Paternal Grandmother ensure that the child continues to attend upon Dr L pediatrician.

14.That neither the Father nor the Paternal Grandmother will drink alcohol to excess while the child is in their respective care.

15.That both the Father and the Paternal Grandmother do everything possible to remove the child from situations of domestic violence.

NOTATIONS

1.It is the intention of the Paternal Grandmother and the Father to attend at the Family Relationship Centre at a location to be agreed, to obtain counseling as recommended by the practitioner, including child inclusive counseling if deemed appropriate by the practitioner.

2.That the Paternal Grandmother and the Father agree that should the Father return to live in Town B that they will attend Family Dispute Resolution through either a Legal Aid Conference or the Family Relationship Centre as agreed to discuss the child’s future living arrangements.

3.In the event that the Paternal Grandmother and the Father can not reach agreement anticipated by paragraph (2) of the notations above, then either the Maternal Grandmother or the Father may apply to the Court for further orders. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mulenga & Mulenga has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 11154 of 2010

Mr Mulenga

Applicant

And

Ms Mulenga

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. When this parenting dispute concerning D, born in July 2002, came before the Court at a callover designed to facilitate the final hearing of matters in this Court, the Court had the advantage of having received from a family consultant, Mr R, a report filed on 28 June 2011.  That report comprehensively sets out the issues directly relating to D’s best interests and the dispute then existing between the then parties. 

2. Initially, D’s maternal grandmother was a party to these proceedings, but ultimately she filed a Notice of Discontinuance and has taken no further part in the proceedings since the filing of that document.

3. D’s mother has unfortunately played very little part in D’s upbringing and plays no significant role in his life at the current time. 

4. The evidence reveals that D has spent a considerable period of time receiving significant care from his paternal grandmother, with whom he has, according to Mr R’s description, a closely attached and loving relationship.  There is no doubt on the evidence before me about that very close and loving relationship, she is plainly a very significant and important person in his life.

5. The proceedings between the parties seemed to me to be capable of resolution at the time that the matter was listed on the callover.  The then parties to the proceedings were the father and his mother.  Each of them seemed to me to be properly concerned with D’s welfare with each seeking to achieve what was best for him in both the short and long term.

6. If D’s father was to remain living in the Town B area, where the paternal grandmother had lived with D for some time, I suspect there would be very little, if any, dispute between the parties. 

7. Partly that derives from the attitude of the paternal grandmother, whose attitude - as expressed to me – is that parents ought be primarily responsible for the nurturing of their children but that she would be present in order to assist the child and her son as and when that might be needed. 

8. Circumstances changed somewhat when the father commenced a relationship with his new partner. 

9. She, and now they, reside near Town A, which is a significant geographical distance from Town B.  The father and his new partner and his new partner’s children live on what the grandmother describes in her interviews with Mr R as a “mission”, which, I gather, is situated on the outskirts of Town A.

10. What remains of the dispute between the parties after the maternal grandmother discontinued her application can be seen to have devolved from the fact that the father was desirous of D living with he, his partner and his partner’s children in or near Town A and Ms Mulenga expressing concerns about the manner in which D might be cared for in that particular arrangement.

11. Coupled with that is the fact that D, who suffers from some significant intellectual and behavioural difficulties, has expressed to her, and it should be noted also to Mr R, significant reservations about living with his father at that place (and, one suspects is as important) living away from the environment with which he had become familiar in and around the Town B area.

12. Given what I hoped to be the prospects of these matters being resolved by sensible discussion between two people who are of course related by blood but who also, as it seems to me, were anxious to care for D in a way that accommodated his best interests, I suggested to the parties that they might consider agreeing to a judicial settlement conference which was subsequently arranged and conducted by me. 

13. Fortunately the relevant funding agencies saw fit to permit, as I had hoped, the presence of Mr R, who subsequent to his first report, had prepared a subsequent report annexed to an affidavit filed 8 November 2011. Mr R was available today in person so as to assist the Independent Children’s Lawyer and the practitioners for the parties in facilitating discussions between them. 

14. Equally fortunately, I was to play very little role in that judicial settlement conference, and the parties, with the assistance of their respective legal practitioners, have been able to reach agreement on a final basis with respect to the parenting orders that will apply to D’s future care. 

15. Resolving issues by agreement in the shadow of court proceedings is never easy.  The parties are to be congratulated for their ability to be able to put aside the concerns that they otherwise have and to cooperate together with the assistance of advice from Mr R and the Independent Children’s Lawyer and their legal practitioners to arrive at arrangements which, as it seems to me, are perfectly sensible and are highly likely to be arrangements which D will embrace and which are in his best interests. 

16. I have little doubt, having read the material filed by the parties and the two reports of Mr R, that the arrangements agreed to between the parties are in fact in his best interests, and I have little hesitation in making those orders by consent. 

17. In addition to the matters contained in the minutes of consent, an additional issue arises. 

18. The Independent Children’s Lawyer and the mother each seek an order pursuant to section 65L of the Act.  Mr Ashcroft, counsel for the father, indicated that his client was opposed to the making of that order. 

19. It seemed to me, though, from submissions made by Mr Ashcroft, that there were two real concerns in relation to such an order.  The first is a concern which I share, and that is that such an order might be seen as somehow rendering the orders otherwise agreed to as “provisional”. 

20. It is important that I emphasise to both Ms Mulenga and to Mr Mulenga, who is not present but who has been able to communicate with his solicitor and barrister during the course of the discussions today, that the making of an order pursuant to section 65L should in no way, shape or form suggest that the orders otherwise agreed to between the parties are anything other than final orders or somehow renders them as “provisional”.

21. On the contrary, the provisions of section 65L(1)(b), which I make clear is the provision under which this order will be made, are designed, so as to attempt to facilitate the orders to which the parties have agreed as remaining in place but to render assistance to such party as might request same so as to ensure the better workability in D’s best interests.

22. In discussions between the bench and counsel for the father, I indicated that I would make it clear in these reasons, as I have attempted to, that any order pursuant to section 65L would be made pursuant to subparagraph (b) of that section. 

23. As I pointed out, the order expressed in that manner does not place any requirements upon either of the parties in the sense that failure to comply with them would render them in breach of an order.  Rather, the only requirements placed upon anyone by reference to the terms of 65L(1)(b) is upon a family consultant, who is, of course, an employee of this Court.

24. The requirement placed on the family consultant by the order is to render such assistance as is reasonably requested by a party in relation to, relevantly, the carrying out of the parenting order.  In that respect the parties have, sensibly if I may say so, included notations in the orders to the effect that it is their intention that both the paternal grandmother and the father will attend at a family relationship centre at a location to be agreed so as to obtain counselling as might be recommended by the practitioner there. 

25. So, too, a further notation outlines, with greater specificity, that in the event that the father returns to live in the Town B area, he and his mother will attend family dispute resolution through either a legal aid conference or a family relationship centre as agreed to.  Each of those sensible provisions has, as it seems to me, as at least one of its primary purposes the notion that the parties might between them meet with professional assistance so as to attempt to agree any issues that might arise between them rather than have the prospects of their relationship being soured by further court proceedings in which, of course, D will be caught in the middle.

26. It seems to me that the section 65L order proposed by the mother and the Independent Children’s Lawyer can and should be seen as but one further piece of assistance that might be provided to the parties so as to facilitate discussions between them about issues that might arise with respect to parenting orders and D’s care more broadly described. 

27. With that in mind, it seems to me that it is beneficial to D to make the order as sought by the mother and the Independent Children’s Lawyer, and I will do so.

28. As I have said, I will make it clear by the terms of the order that it is an order made pursuant to section 65L(1)(b) of the Act, and further that the intention of the order as referred to in that subparagraph is the rendering of assistance in relation to “the carrying out of” the parenting orders otherwise agreed to between the parties.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 16 February 2012.

Associate: 

Date:  20 March 2012