Nayyir and Nayyir

[2007] FamCA 332

FAMILY COURT OF AUSTRALIA

NAYYIR & NAYYIR [2007] FamCA 332

FAMILY LAW - CHILDREN – Consent Orders made in Standard Track List proceeding.

APPLICANT: Mrs Nayyir

RESPONDENT: Mr Nayyir

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2308 of 2006

DATE DELIVERED: 15 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 14-15 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cenacchi

SOLICITOR FOR THE APPLICANT: Women's Legal Resource Group

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Michael Jokovic & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Marchetti

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Hale & Wakeling

Orders

1. That all previous parenting Orders, save for the Injunctions relating to travel made on 31 July 2006, be discharged.

1. That the husband and wife share equal parental responsibility for the children:

   S born in October 1996; and
              E born in September 1998.

1. That the children live with the husband as follows :

a)During the Victorian school term :

i)   On the first Thursday in February; on the Labour Day weekend; on the ANZAC Day weekend; the Queen’s Birthday weekend, on the last Thursday in July; the third Thursday in August, the last Thursday in October; and the third Thursday in November from 7.00pm on Thursday until 6.00pm on Sunday (save that in the event the following Monday is a pupil free day then such time be extended to 6.00pm on Monday);

ii)    On one occasion per school term for one continuous period of three nights, from 6.00pm on Thursday until 6.00pm on Sunday, provided the husband notify the wife 21 days prior in writing, of his intention to exercise such time, AND for such purpose such time be in Melbourne and the father ensure the children’s attendance at school as may be required;

iii)  from 7.00pm on third Friday in May to 6.00pm Sunday, the husband to pay the cost of return airfares.

b)During each of the Victorian school term holidays, from 9.00am on the first Saturday of the term holidays until 6.00pm on the mid Sunday of the school term holidays;

c)During the long summer school holidays as follows:

i)   From 9.00am on 31 December until 4.00pm on 26 January in the 2007/2008 long summer holidays and in each alternate year thereafter;

ii)    From 9.00am Christmas Eve until 4.00pm on 19 January in the 2008/2009 long summer holidays and in each alternate year thereafter.

d)As may otherwise be agreed between the parents, in writing, from time to time.

1. That the children live with the wife at all other times.

1. That for the purpose of changeover between the parents pursuant to these Orders:

a)The Melbourne changeovers take place at the McDonald’s Family Restaurant, G; and

b)In the event the children are to be in the husband’s care in Sydney, then changeover occur with the wife delivering , and doing all necessary things to ensure the children board a flight booked and paid by the husband, and the husband delivering, and doing all things necessary to ensure the children board a return flight paid by the wife.

1. That the children communicate by telephone :

a)With the husband:

i)   On each of the children’s birthdays, Father’s Day, Easter Sunday, and Christmas Day, in the event the children are not in his care, between 6.00p.m. and 6.30p.m. with the children to initiate such calls to the husband’s landline, and the wife to ensure that the children are able to speak with the husband privately and undisturbed;

ii)    when the children are not in his care, between 4.00pm and 7.00pm, with the husband to initiate such calls to the wife’s landline phone number, and the wife ensuring that the children are able to speak with the husband privately and undisturbed;

b)With the wife, when the children are not in her care, at all reasonable times;

c)With the paternal aunt, … and the paternal grandmother with either the paternal aunt or the paternal grandmother initiating such calls to the wife’s landline between 6.00pm and 6.30pm Melbourne time, provided that the husband provide the wife no less than 48 hours notice of such call, and the wife ensure that the children are able to speak with either the paternal aunt or paternal grandmother privately and undisturbed.

1. The parties forthwith commence and maintain a communication book with respect to the said children, which book shall travel with the said children, and shall detail issues relating to the children’s education and health.

1. The husband and wife, their servants and agents, be and are hereby restrained by injunction from :

a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent to or in the presence or hearing of the said children or either of them, and from permitting any other person so to do;

b)physically disciplining the children or either of them.

1. The parents do :

a)attend and complete, as soon as practicable, an appropriate post separation parenting program (“the Program”) at an organisation as nominated by the Child Dispute Resolution Coordinator of the Family Court of Australia;

b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;

c)be responsible for all costs associated with the Program; and

d)provide a certificate of completion of the Program to the other parent.

AND it is noted that the wife advises that she has already completed a Program.

10)That the wife authorise and direct the children’s school (or schools) to provide to the husband, at the husband’s expense, copies of all material ordinarily provided to parents, including, but not limited to, copies of all photographs, reports, newsletters and like material; AND the husband be at liberty to attend at all functions and school events where parents are invited, including, but not limited to, parent/teacher interviews, sports days, fairs and like occasions.

11)That each of the husband and wife :

a)keep the other advised of their residential and telephone contact details;

b)forthwith notify the other parent of any serious medical illness or injury affecting the children, whilst the children are in their respective care, and thereafter provide details and authority for the other parent to discuss the children’s health issues with any treating practitioner.

12)That pursuant to section 65L of the Family Law Act 1975, compliance with these Orders be supervised, as far as practicable for a period of 12 months by a Counsellor nominated by the Director of Child Dispute Services in the Melbourne Registry of the Family Court of Australia - and such Counsellor may report back to the Court from time to time at their discretion.

13)That the wife attend and consult upon Mr S (or his nominee), and thereafter comply with all lawful directions of her treating mental health practitioner.

14)That the husband forthwith do all things to attend and participate in counselling to address emotional issues.

15)That the wife pay her share of the Family Report ($1380) by way of $50.00 instalments per month.

16)That all extant applications be dismissed and removed from the list of cases awaiting determination.

17) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

18)That pursuant to S65DA(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 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.

AND THE COURT NOTES :

A.That for the purpose of time with the husband referred to in paragraph 3(a) herein, such time be as follows :

i)   In 2007 :

A.     From 7.00pm on 26 April to 6.00pm on 29 April;

B.     From 7.00pm on 18 May to 6.00pm on 20 May;

C.     From 7.00pm on 7 June to 6.00pm on 10 June;

D.    From 7.00pm on 26 July to 6.00pm on 29 July;

E.     From 7.00pm on 16 August to 6.00pm on 19 August;

F.   From 7.00pm on 25 October to 6.00pm on 28 October;

G.    From 7.00pm on 15 November to 6.00pm on 18 November.

ii)    In 2008 :

A.     From 7.00pm on 7 February to 6.00pm on 10 February;

B.     From 7.00pm on 6 March to 6.00pm on 10 March;

C.     From 7.00pm on 24 April to 6.00pm on 27 April;

D.    From 7.00pm on 16 May to 6.00pm on 18 May;

E.     From 7.00pm on 5 June to 6.00pm on 9 June;

F.   From 7.00pm on 31 July to 6.00pm on 3 August;

G.    From 7.00pm on 21 August to 6.00pm on 24 August;

H.    From 7.00pm on 30 October to 6.00pm on 2 November;

I.    From 7.00pm on 20 November on 6.00pm on 23 November.

iii)  In 2009 and thereafter, for the sake of clarity, the commencement of time which accords with a public holiday shall (where the public holiday falls mid week) the Thursday commence immediately following such public holiday (save where that public holidays falls on the Thursday in which event time shall commence on that day) or (where the public holiday falls on a Friday or Monday) such time incorporate those days.

AND THE COURT FURTHER NOTES :

B.That each of the parties agree that as to 15 March 2007 the wife relinquish any arrears or payments due by the husband to the wife with respect of child support for the children AND the husband excuses and relinquishes the wife from payment or re-imbursement of the children’s fares pursuant to the Orders of 8 September 2006 including the flight of the 15 March 2007 to 18 March 2007. AND each of the husband and wife agree to do all things necessary to reflect this agreement with the Child Support Agency.

AND

C.The husband’s Child Support is reduced $50.00 a month until the repayment of counselling costs pursuant to Order 15.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2308  of 2006

Mrs Nayyir

Applicant

And

Mr Nayyir

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of defended cases and involves welfare arrangements for two children, S, born in October 1996, and E, born in September 1998. 

2. I have had the advantage of reading the trial affidavits of the parties, the Case Outline Documents and having heard submissions yesterday from counsel engaged on their behalf.  The matter did not adjust, albeit that they discussed settlement all day.  This continued overnight.  Mr Givney travelled down from Sydney this morning and the parties continued negotiations and the matter has now been resolved, in my view, in a most commonsense and dignified manner.  I congratulate the parties on having the necessary steel and dignity in coming to this arrangement. 

3. I have had explained to me the arrangements through Mr Marchetti, who appears for the Independent Children's Lawyer.  They are proper arrangements for the welfare of these two children in the circumstances.

4. I mark the Minute of Consent Orders Exhibit “A”.

5. I note the removal of the proceedings from the Active Pending Cases List. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  20 April 2007

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