Neil and Osten

[2009] FamCA 269

FAMILY COURT OF AUSTRALIA

NEIL & OSTEN [2009] FamCA 269

FAMILY LAW – PRACTICE AND PROCEDURE – CASE MANAGEMENT – Interim children’s orders – Views of Independent Children’s Lawyer to be considered – s 62G(2) report

Family Law Act 1975 (Cth)

APPLICANT: MS NEIL

RESPONDENT: MR OSTEN

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 501 of 2007

DATE DELIVERED: 6 APRIL 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 6 APRIL 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR COLLINS

SOLICITOR FOR THE APPLICANT: WESTMINSTER LAWYERS

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR COMBES

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: AGRICOLA WUNDERLICH & ASSOCIATES

Orders

IT IS ORDERED BY CONSENT:

1. THAT pursuant to Section 62G(2) of the Family Law Act 1975 the parties forthwith attend upon and the Independent Child Lawyer confer with a Family Consultant appointed by the court for the preparation a report on the appropriateness of consent court orders negotiated by the parties but opposed by the independent child lawyer.

2. THAT until further order both parties by their servants and agents be restrained from removing the children of the marriage from the Commonwealth of Australia.

3. THAT all extant applications be adjourned to a directions hearing to take place before Registrar Riddiford at the first practicable opportunity after preparation of the Section 62G(2) report referred to in paragraph 1 hereof and advice from the parties that the matter is ready to proceed.

4. That the ex tempore reasons for judgment delivered this day be transcribed and be placed on the court file and copies made available to the parties.

BY CONSENT IT IS ORDERED

1. THAT the husband and the wife have the equal shared parental responsibility for the children of the marriage R born … July 2003 and S born … February 2005 (“the children”).

2. THAT the children live with the wife from 9.00 a.m. on Monday 2 February 2009 to 9.00 a.m. on Monday 9 February 2009 and each alternate week thereafter.

3. THAT the children live with the husband from 9.00 a.m. on Monday 9 February 2009 to 9.00 a.m. on Monday 16 February 2009 and each alternate week thereafter.

4. THAT changeover for the purposes of paragraphs 2, 3, 5 and 6 hereof take place

   a)when the children are attending school or daycare, at the children’s school and/or daycare centre.

   b)when the children are not attending daycare or School, at the husband’s mother’s home at 8.00 p.m. on that day and if the husband’s mother is not available at 8.00 p.m. at McDonald’s C. 

5. THAT notwithstanding anything else in these orders the children spend two (2) weeks each year with the wife to include Chinese New Year, the wife to advise the husband four (4) weeks in advance as to the commencement and completion of such two (2) week period.

6. THAT notwithstanding anything else in these orders the children spend two (2) weeks each year with the husband to include Christmas the husband to advise the wife four (4) weeks in advance as to the commencement and completion of such two (2)week period.

7. THAT the parties be entitled to telephone the children once daily between 6.00 p.m. and 6.30 p.m. when the children are in the care of the other parent.

8. THAT the parties be restrained from denigrating or allowing third parties to denigrate the other party to or within the hearing of the children.

9. THAT the parties do all things necessary to ensure the child R attends D Primary School from the commencement of the 2009 academic year and that the child S attends D Primary School from the commencement of the 2010 academic year.

10. 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 publication of this judgment under the pseudonym Neil & Osten is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 501 of 2007

MS NEIL

Applicant

And

MR OSTEN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In the matter of Neil and Osten, and the independent children's lawyer, I have been handed proposed minutes of consent orders. 

2. The husband appears in person, and Mr Collins represents the wife.  Mr Combes of counsel appears for the Independent Children's Lawyer.

3. There are two children of this marriage and they are five and four years of age.  There have been previous orders and this matter has a history that is disclosed in the earlier affidavits filed and in the orders of Senior Registrar FitzGibbon made both 19 January 2009 and 29 January 2009.

4. The current position is that the parents have equal shared parental responsibility and the children live on a week-about with each of them.  There is clearly a level of conflict in this case and that conflict extends to the other members of family, presumably grandparents primarily.  I do not open any of those issues as they are currently not before me.  I have been presented with minutes of consent orders signed by the parents but not by the independent children's lawyer.  Mr Combes' submission is that the orders are inappropriate and not in the best interests of the children and that they are not endorsed by his instructor, the independent children's lawyer.  Of necessity that submission must have some force and does need some level of appropriate investigation.

5. The orders as presented are final orders and require the children to live week‑about with the parents, subject to special occasions and holidays.  I am satisfied that the wife has instructed her legal practitioner that she accepts these orders.  The husband has asked that the orders be pronounced.

6. What I intend to do in this case is to make orders that are operative for a period of approximately three months. The interim orders will be identical to the consent orders and other accompanying specific issues and related orders. I will make an order pursuant to section 62G(2) of the Family Law Act 1975 for a welfare report to be prepared as soon as practicable. For the purposes of that report the family consultant must confer with the parents and, importantly, with the independent children's lawyer and any other relevant adults or organisation who may give assistance and factual information to determine what is best for these two children.

7. This is a somewhat unique case in that the parents agree but the appointed legal representative does not agree as to the best interests of the children and therefore an investigation is required with as much depth and conference time as is available.  What I expect is for a report to be prepared to the court identifying issues of concern and also understanding the instructions of the parents and related matters.

8. In the interim it is appropriate that both children not leave Australia, and on an interim basis I will ask the wife's practitioner to draw a further interim order that both parties, their servants and agents are restrained from removing the children from the Commonwealth of Australia pending further order.  In that regard, it would be appropriate that the discharge of the children from the airport watch list, as part of current paragraph 10 be removed, and that can be included in any final order.  The children must remain in Australia.

9. I will not discharge the appointment of the independent children's lawyer, and in the draft orders now before me, paragraphs 11 and 14 will be removed.  Likewise, paragraph 13 dismissing the wife's application is premature at this stage because the matter must return for a hearing.  The matter has not been allocated to any list of cases.  The assigned Registrar is Mr Riddiford and the orders should provide for all extant applications to be adjourned for mention and a directions hearing before Registrar Riddiford at the first available date after completion of the family report.  He then can allocate the matter to a court list and, if it is consent orders to be made, the matter can go into a judicial duty list or otherwise be listed as a matter of urgency.

10. I will have these extempore reasons transcribed, placed upon the court file and made available to the parties.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: