OSBORNE & OSBORNE

[2015] FamCA 211

FAMILY COURT OF AUSTRALIA

OSBORNE & OSBORNE [2015] FamCA 211

FAMILY LAW – CHILDREN – Best interests – equal shared parental responsibility – orders by consent

Family Law Act 1975 (Cth)

APPLICANT: Ms Osborne

RESPONDENT: Mr Osborne

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 4860 of 2007

DATE DELIVERED: 9 February 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 9 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carter

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

THE RESPONDENT:	In Person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED THAT:

1. All previous parenting Orders be discharged.

2. The parents have equal shared parental responsibility for the children B born … 1999, C born … 2003 and D born … 2005.

3. The children live with the Mother.

4. The children C and D spend time with the Father as follows:

   4.1From 12:00 noon to 5:00 p.m. on Sunday, 22 February 2015, 8 March 2015, 22 March 2015, 29 March 2015 and 12 April 2015;

   4.2From 10:00 a.m. Saturday to 5:00 p.m. Sunday on 25 April 2015 and 9 May 2015;

   4.3From 6:00 p.m. each alternate Friday to 5:00 p.m. Sunday commencing 23 May 2015;

   4.4During school term from the conclusion of school Thursday, to 7:30 p.m., commencing 19 February 2015, with the Father to collect the children at the commencement of time and the Mother to collect the children from the Father at the conclusion of time;

   4.5Commencing in the June/July holidays 2015, during school term holidays at times agreed and failing agreement, the alternate weekend regime pursuant to Order 4.3 hereof shall continue, but time pursuant to Order 4.4 shall be suspended, to resume again at the commencement of term;

   4.6During the long summer holidays at times agreed and failing agreement for two weeks, commencing at 4:00 p.m. on 25 December, with the time pursuant to Orders 4.3 and 4.4 hereof to be suspended during the long summer holidays and shall resume at the commencement of term as if there had been no such intervening holiday period; and

   4.7      At such other or further times as agreed between the parents.

5. The child B shall attend upon Ms E, clinical psychologist, or her nominee, at F Psychology, G Street, Suburb H for the purpose of counselling to address B’s relationship with the Father and for this purpose, the parties shall:

   5.1      Do all acts and things necessary to obtain a mental health plan; and

   5.2Abide by all reasonable requests of Ms E (or her nominee) as to attendance and participation in meetings and/or counselling sessions at F Psychology

   and the Independent Children’s Lawyer is at liberty to provide to the counsellor copies of the two Family Reports dated 4 September 2014 and 11 December 2014, the Report of Doctor I dated 31 March 2014 and Ms J dated 30 May 2014. 

6. Notwithstanding any other Order:

   6.1The children C and D shall spend time with the Father from 10:00 a.m. to 5:00 p.m. on Father’s Day;

   6.2The children shall spend time with the Mother from 5:00 p.m. 24 December to 4:00 p.m. 25 December each year;

   6.3The children shall spend time with the Mother from 10:00 a.m. to 5:00 p.m. on Mother’s Day.

7. Both parents shall ensure, for the purposes of overnight time, that each of the children has their own bed in which that child shall sleep.

8. The children are at liberty to telephone the parent who is not caring for them, at all reasonable times, and for this purpose, the child C shall travel with a mobile telephone which each parent shall ensure is charged and available to be used.

9. Both parents be and are hereby restrained from:

   9.1Physically disciplining the children, or any of them, threatening to do so or allowing any other person to do so;

   9.2Denigrating the other parent to or in the presence or hearing of the children, or any of them, or allowing any other person to do so;

   9.3Discussing these proceedings with or in the presence of the children, or any of them, or allowing any other person to do so. 

10. The Mother is at liberty to arrange for the children C and D to attend upon the school Chaplain for counselling and support.

11. Save as provided for and unless otherwise agreed herein, the Mother shall delivery the children to the Father at the commencement of time and the Father shall return the children to the Mother at the conclusion of time.

12. Both parents hereby authorise and request any school at which C and/or D attend to provide copies of reports, newsletters, notices, photo order forms and the like to each parent, at the expense, if any, of the receiving parent.

13. Both parents are at liberty to attend at any school attended by C and/or D, or at any extra-curricular function for any event to which parents are routinely invited.

14. In satisfaction of Orders 5 and 6 made 20 October 2014, the Father shall pay the Wife’s costs fixed at $3,000 within 14 days.

15. The Independent Children’s Lawyer shall meet with all three children as soon as practicable to explain these Orders to them. 

16. Pursuant to S65DA(2) and S62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet annexed hereto and these particulars are included in these orders.

17. The Order for the appointment of the Independent Children’s Lawyer is discharged after she has met with the children as set out in Order 15 hereof.

18. That all extant Applications be otherwise dismissed.

AND THE COURT NOTES:

A.C will shortly commence football. Both parents intend to take C to his football commitments whilst in his or her care.

B.The Father intends to be responsible for attending to the dental needs for C and D at his expense.  The parents agree that any expense incurred by the Father in this regard shall not be credited against any assessment of child support.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Osborne & Osborne 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 MELBOURNE

FILE NUMBER: MLC 4860 of 2007

Ms Osborne

Applicant

And

Mr Osborne

Respondent

And

Independent Children’s Lawyer

REASONS

1. These reasons were delivered orally.

2. Today is the first listed day of the final hearing that was listed for five days with respect to the parenting arrangements of the three children of the marriage, B aged 15, C aged 11 and D aged 9.

3. Each of the parties sought orders for sole parental responsibility and each of the parties sought that the children live with them, although the father did modify that position at the commencement of the hearing such that he sought that there be a shared care arrangement with respect to the three children.

4. These proceedings have had a very difficult history. 

5. This is a Magellan matter and the matter comes within the Magellan list as a result of the very serious allegations that have been raised against the father by the mother.

6. Those allegations include allegations that the father has sexually abused the parties’ eldest child, B; that he has physically abused the children; and further, that he has exposed the children to pornography or at least some of the children to pornography.

7. The parties have been assisted by the involvement of the Independent Children's Lawyer.  The evidence that has been put before the Court by the Independent Children's Lawyer has included a psychiatric assessment prepared by Dr I and a psychological assessment of the child B prepared by Ms J.  Two Family Reports have been prepared by the Family Consultant, Ms K.

8. The child who has made the disclosures, B, is a child who has been diagnosed with a global development delay.  The evidence of Ms J, who has assessed B, casts serious concerns as to the weight that could be attached to any disclosures made by B.

9. Ms J confirmed the assessment that B has a global development delay in her report filed 26 September 2014.  Ms J notes the limitations with regard to B’s language and understanding.  She noted that there were aspects of B’s account of the alleged sexual abuse which challenged acceptance of those allegations. She noted the significant changes in B’s account of the alleged abuse over the passage of these proceedings and the investigation of those allegations.

10. Ms J was also careful to note the amount of discussion and interview that B had been exposed to over the course of these proceedings.  She also noted that because of her intellectual disability, B was highly suggestible and open to be easily led with respect to such matters.  Those observations are largely echoed by the report of Ms K.

11. In the second family report of Ms K, she notes the statements of the children, particularly C and D, whereby they made disclosures to the effect that the mother and her partner, Mr L, had instructed them as to what they should state at the interview with the Family Consultant.

12. It was noteworthy that during the course of the second interview by the family report writer, B made no reference to the allegation that she had experienced abuse at the hands of her father.

13. The orders that are sought to be made largely accord with the recommendations made by Ms K at the conclusion of her report.  They represent what will be a restoration of the father’s relationship with the two younger children without the limitations that supervision has placed upon the continuation and the fostering of that relationship.

14. Although the evidence before me has not been tested, I feel confident in making the observation that, in light of the material placed before the Court by the Independent Children's Lawyer in the form of the report of Ms J but also with respect to the family report writer, I can be confident in saying that I would not have been in a position to make a finding as to unacceptable risk.

15. Having read all of the material before the Court and heard submissions of the Independent Children’s Lawyer I am satisfied that the orders, as proposed, are in the children’s best interests.  They will ensure that the children can have the opportunity of a meaningful relationship with both parents.  That accords with the object and principles set out in Part VII of the Family Law Act 1975 (Cth).

16. Accordingly, I will make orders in the terms of the minute that has been signed by the parties.  I will mark the minute with the letter “A”.  It will remain on the Court file.  I direct that the solicitor for the applicant wife engross the orders and that they be filed at Court within seven days.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 February 2015.

Associate:

Date:  9 February 2015