Orrington and Anthony and Anor

[2007] FamCA 1208

FAMILY COURT OF AUSTRALIA

ORRINGTON & ANTHONY AND ANOR [2007] FamCA 1208

FAMILY LAW  -  CHILDREN  -  residence orders in favour of third party  -  whether parental responsibility should be shared between third party and father, who serving long sentence of imprisonment for murdering his grandmother

Family Law Act, 1975 (Cth)

APPLICANT: MR ORRINGTON

FIRST RESPONDENT: MS ANTHONY

SECOND RESPONDENT: MR VICARE

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2824 of 2004

DATE DELIVERED: 28 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 28 August, 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A.L. O'Connell

SOLICITOR FOR THE APPLICANT: Lawsons McDonald Scott Waters

COUNSEL FOR THE SECOND RESPONDENT: Mr R.N. Hoult

SOLICITOR FOR THE SECOND RESPONDENT: Donald S. Lampe

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Bender

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Victoria Legal Aid

Orders

1. That the second respondent have sole parental responsibility for the children R born … March, 1993 and J born … October, 1994.

1. That the second respondent keep the applicant advised of significant matters relating to the children in the following areas :

   (a)education;

   (b)health, including psychological health;

   (c)religious observance;

   (d)travel, including obtaining passports for them;  and

   (e)sporting, cultural and other extra-curricular activities. 

IT IS FURTHER ORDERED BY CONSENT

1. That the children live with the second respondent.

1. That the children spend time with the applicant at … Prison or such other prison in which the applicant is incarcerated as follows :

   (a)from 10:30 am. until 2:30 pm. on either the first or second Wednesday of each school term holiday as agreed between the applicant and second respondent, such day to be a day on which the Stronger Families Program is conducted at … Prison;

   (b)from 10:30 am. until 2:30 pm. on a day in December which is a visiting day at … Prison or such other prison in which the applicant is incarcerated, and the specific day be agreed between the parties;

   (c)from 10:30 am. until 2:30 pm. on one day during the month of January as agreed between the applicant and second respondent and, failing agreement, on the third Saturday in January;

   (d)at such further or other times in accordance with the children’s wishes;  and

   (e)at such other times as may be agreed between the applicant and second respondent.

1. That the time the children spend with the applicant pursuant to paragraph (4) of these orders be subject to their wishes, and subject to paragraph (6) hereof. 

1. That in the event R or J individually elects to spend time with the applicant on any particular occasion and notwithstanding the desire of the other child not to attend on that occasion, the second respondent shall do all things reasonably necessary to facilitate attendance by the child who elects to spend time with the applicant.

1. That the second respondent sign all documents and do all other necessary things to allow the children to participate in the Stronger Families Program at Loddon.

1. That to facilitate the time the children are to spend with the applicant pursuant to these orders :

   (a)the second respondent or his agent shall be responsible for transporting the children to and from … Prison or such other prison in which the applicant is then incarcerated;  and

   (b)in the event an agent is responsible for such transport, the second respondent provide the applicant with the full name, date of birth and address of the said agent at least ten days prior to the children’s attendance at the prison, so that the agent may be included on the applicant’s visitor list.

1. That the children communicate with the applicant by telephone between 5:00 pm. and 6:00 pm. on :

   (a)each Monday;

   (b)Christmas Day;

   (c)Easter Sunday;

   (d)R’s birthday;

   (e)J’s birthday;  and

   (f)the applicant’s birthday;

   and at such other times as may be agreed between the applicant and second respondent.

1. That the second respondent sign all documents and do all other necessary things to allow the applicant to make telephone calls from prison to the landline telephone at the second respondent’s residence in order to give force and effect to paragraph (9) of these orders.

1. That the applicant be permitted to send mail to the children and to receive mail from the children and the second respondent do all things reasonably necessary to facilitate the children corresponding with the applicant.

1. That the children spend time and communicate with the first respondent as agreed between the respondents. 

1. That the applicant and the respondents each keep the others informed of his or her current address and telephone numbers. 

1. That as soon as practicable the applicant and the respondents notify the others of any medical or other emergency affecting the children which occurs during that person’s time with the children.

1. That the party who receives a school report for the children forthwith provide a copy of it to the other parties or, if the school is agreeable, request that the school provide copies of such reports directly to the other parties. 

1. That M born … August, 1990 live with the second respondent.

1. That M spend time and communicate with the applicant at such times as may be agreed between the applicant and the second respondent, but always subject to M’s wishes.

1. That M spend time and communicate with the first respondent at times as may be agreed between the respondents, but always subject to M’s wishes.

1. That the appointment of the independent children’s lawyer be discharged forthwith. 

1. That all extant applications be otherwise dismissed.

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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.

2. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

1. The applicant and the respondents agree that they will endeavour to maintain a respectful and co-operative parenting relationship with each other and promote the best interests of the children at all times.

2. The applicant and the respondents agree that in the event of further conflict or dispute in relation to parenting issues, or them being unable to agree on whether there is a need to change these orders or in what way, in the first instance they will seek mediation/counselling prior to issuing legal proceedings. 

3. That with respect to the order for the children to spend time with the applicant in the month of December, the second respondent will endeavour to arrange that visit as close to Christmas Day as possible. 

IT IS NOTED that publication of this judgment under the pseudonym Orrington & Anthony is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2824  of 2004

MR ORRINGTON

Applicant

And

MS ANTHONY

First Respondent

And

MR VICARE
Second Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The applicant for orders is Mr Orrington, aged 34, a prisoner serving a long sentence for the murder of his paternal grandmother;  I will refer to him as the father.  The first respondent is the father's former wife, Ms Anthony, who is 33.  She and the applicant have two daughters, R, who is 14, and J, 13.  The mother has played little part in these proceedings.  She is also the mother of M, aged 17, whose father, Mr C, has no contact with him. 

1. The father initially sought orders in respect of M, R and J but advised some time ago that he was content to spend time with M as agreed, having regard to M’s age. 

1. After the mother and father separated, the mother formed a relationship with Mr Vicare, who is the second respondent.  They have three children, aged 11, six and five. 

1. Without rehearsing all the events that led to this outcome, the second respondent is bringing up the six children to whom I have referred.  Three are his biological children, three are his step children (two being children of the applicant and the first respondent and one, the child of the first respondent and Mr C). 

1. To the credit of the father and the second respondent, and with the assistance of very experienced counsel for the independent children's lawyer, agreement has been reached on parenting orders in respect of M, R and J, which the father, the second respondent and the independent children’s lawyer seek to have made today.  The father will not be eligible for parole until 2013. The proposed orders make provision for the father’s daughters to have the capacity to see him during school holidays;  on days that coincide with the Stronger Families Program conducted at the prison;  on a day in December, close to Christmas; and other times as agreed.  M will spend time or communicate with the father as agreed, and always subject to his wishes.

1. The father and the second respondent have not been able to agree on the question of parental responsibility for R and J.  When children are born, their biological parents have parental responsibility for them. That remains the case unless a court makes an order altering that allocation of parental responsibility.  It is common ground among the parties represented today and the independent children's lawyer that the mother is not in a position to exercise parental responsibility;  by that I mean responsibility for major long-term issues as defined in the Family Law Act 1975, particularly issues relating to education, health, religion and, to some extent, where children live. The mother has not appeared and has taken little part in the proceedings.

1. The father seeks to share parental responsibility for the children with the second respondent; he seeks an order that they have equal shared parental responsibility.  An order in those terms would mean that the father and the second respondent would have to agree about all major long-term issues.  That is the effect of the interpretation of the expression "equal shared parental responsibility" by the Full Court, in Goode v Goode (2006) CCH 93-286. The parental responsibility which parents have until a court makes an order can be exercised jointly or severally.  Once an order is made for equal shared parental responsibility, that responsibility must be exercised jointly. 

1. The father seeks equal shared parental responsibility with the second respondent. The second respondent seeks sole parental responsibility.  The independent children's lawyer supports an order for sole parental responsibility to be with the second respondent. 

1. The submissions have gone to practical matters, with which I will deal first.  In a thorough and detailed submission, counsel for the father has summarised the reasons her client seeks an order for equal shared parental responsibility.  The evidence discloses a history of significant involvement in the lives of his daughters, prior to his imprisonment.  The children's mother plays little active or constructive role in their daughter’s lives, so he is the only biological parent with the capacity to have input into major decisions.  While his relationship with the second respondent has been troubled in the past, it is submitted that it is now good enough to allow them to work together, in the best interests of the children, and together make major long-term decisions.  He is concerned that if he is not involved in this way, by the time he is paroled (even assuming parole at the earliest opportunity) his daughters will be adults and he will not have had the meaningful involvement in their lives which he could have were he to share parental responsibility for them until each turns eighteen.

1. On behalf of the second respondent it is put that it is impractical to make any such order for equal shared parental responsibility.  He is content for the court to make an order that he will keep the father advised about matters such as the children's education and health, their religious observance, their travel (including the obtaining of passports) and their sporting, cultural and other extracurricular activities. 

1. The second respondent has responsibility for four other children, which is a very significant obligation.  By virtue of his imprisonment, the father has very limited flexibility.  The difficulties experienced in trying to arrange video or phone links with the prison for the purpose of this hearing demonstrate how hard it is to make a swift or unscheduled telephone connection with a prisoner.  In saying that, I am not critical of the prison authorities;  it is a reality of the system.  It is simply not possible for a person outside the prison to contact a prisoner in an emergency and say, "What do you say should be done?" about, for example, a child’s injury where there are two courses of potential medical treatment, and a decision must be made swiftly. 

1. Further, the second respondent’s position is that his relationship with the father has not been good and is not good.  In respect of that, one need look no further than two facts, which are not in issue.  The first is that the second respondent formed a relationship with the children's mother soon after her separation from their father; that alone is likely to stand between them.  Secondly, and perhaps more importantly, the husband confessed to killing his paternal grandmother to the mother and the second respondent in February 1999;  it was after they informed police of that confession that he was charged with her murder, and convicted.

1. The independent children's lawyer essentially relies on the same practical matters raised by counsel for the second respondent. 

1. There is also a legal issue, to which the court should have regard.  I will be making parenting orders, which means that the presumption of equal shared parental responsibility is triggered.  That is a presumption that the parents of children have equal shared parental responsibility, unless the court orders otherwise.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  Notwithstanding the rather more restricted definition of family violence brought in by the legislative changes which took effect from 1 July 2006, killing one’s grandmother, the paternal great-grandmother of one’s children, comes within it. 

1. In those circumstances, I am satisfied that the presumption of equal shared parental responsibility should not apply.  Whilst that does not dispose of the matter, it would be ironic if a factual finding of family violence which the court found warranted a parent not sharing parental responsibility with the other parent did not pose an impediment to that same parent sharing parental responsibility with a third party, and one entrusted, by orders to be made by consent, with the responsibility for bringing up the children.

1. I am satisfied there is force and substance in the pragmatic grounds advanced by counsel for the second respondent and the independent children’s lawyer, and I make the decision based on those grounds.  I am reinforced in my view of the appropriateness of that decision by the brief exposition relating to the presumption of equal shared parental responsibility. 

I certify that the preceding
16 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.