Parkinson and Sorensen

[2007] FamCA 1560

FAMILY COURT OF AUSTRALIA

PARKINSON & SORENSEN [2007] FamCA 1560

FAMILY LAW – CHILDREN – Shared Parenting – Proceeding in which Father failed to participate – Consent Orders made in terms of the Minutes proposed by the Mother and supported by the Independent Children’s Lawyer

Family Law Act 1975 (Cth)

Rice v Asplund (1976) FLC 90-725;
King v Finneran (2001) FLC 93-079

APPLICANT: Ms Parkinson

RESPONDENT: Mr Sorensen

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 201 of 2007

DATE DELIVERED: 12 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 12 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Toose

SOLICITOR FOR THE APPLICANT: Cynthia A Toose & Associates

COUNSEL FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Watson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Watson & McLeod

Orders

1. That all previous parenting orders be discharged.

2. That the parties share equally the responsibility for the children of the marriage namely F born on the … day of March 1996, T born on the … day of April 1997 and G born on the … day of January 1999.

3. That the said children live with the Applicant Wife.

4. That the Respondent Husband spend time with the children as agreed between the paries.

5. That the order for the appointment of the Independent Children’s Lawyer be discharged.

6. 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.

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLC201 of 2007

MS PARKINSON  

Applicant

And

MR SORENSEN  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me in the regional sittings of the Family Court of Australia in Mildura and concerns three children:  F, born in March 1996; T, who was born in April 1997 and G, who was born in January 1999.  Ms Toose appears for the applicant wife.  There is no appearance by or on behalf of the husband.  Mr Watson appears as the Independent Children's Lawyer.

2. The proceedings commenced by way of a Form 1 Application filed by the wife on 2 August 2006 seeking that the said three children live with her.  She sought further orders that the husband and herself retain joint parental responsibility for them.  The husband filed a Form 1A Response on 23 August 2006.  In contrast, he sought a week-about arrangement. 

3. By way of background, the parties commenced cohabitation in 1995 and married in May 1995.  Following unhappy differences between them, they separated in October 2004.  I have had the advantage of reading an affidavit filed by the wife on 2 August  2006 together with her affidavit filed on 17 October 2007.

4. For the purpose of making of the orders in the absence of the husband, I emphasise that the contents of the affidavits of the wife support the making of those orders.  However, importantly in my view, is the fact that the husband has since filed a Notice of Discontinuance on 26 October 2007.  He is aware of the proceedings.  Beyond that indeed, however, is the fact that Mr Watson as the Independent Children's Lawyer supports the making of the orders.  I have also considered a Family Report prepared by Ms H and dated 24 September 2007.

5. Proceedings must come to an end and it can be said quite firmly that the circumstances underpinning the orders to be made this day result from a reading of the Family Report and that there should be no further return to the court save in circumstances that would be generated within the parameters of the law.  See Rice v Asplund (1976) FLC 90-725; King v Finneran (2001) FLC 93-079.

6. It is clear to me from reading the family report and particularly the evaluation of Ms H that the orders are quite appropriate having regard to the matters opined by her and referred to in paragraphs 32 to 36 inclusive.  In particular it is in my view relevant to incorporate the following:

   “35:Given all the above issues, and, in particular, the fact that [the husband] has not commenced living in [the Mildura area], it is recommended that at this time the Court focus on the issue of the time [the husband] spends with the children when he is living in [the Mildura area].  Prior to [the husband]'s move to [the Mildura area], the current visiting arrangements should continue.  In relation to [F], given the level of his anxiety, and the parents' acceptance, up to this point, that he does not stay overnight, it is recommended that [F] not be forced to stay overnight in the future, and that his issues are addressed in his counselling with a Mr [D].  …

   36:It is recommended that, when [the husband] is living in [the Mildura area], the children spend time with him every second weekend and once during the week, and that [F] commence staying overnight when this is recommended by Mr [D].  School holiday visits should commence after [the husband] has been living in [the Mildura area] for an extended period.”

7. The circumstances preceding those recommendations, however, are epicentral to the living arrangements for the children.  It is clear to me that the father has not undertaken all that he should properly do in the circumstances.  I propose to make an order that all previous parenting orders be discharged and that the parties share equally the responsibility for the children in the marriage who shall live with the wife.  I make orders in terms of Exhibit “A”.  The court will take out the orders and the Independent Children's Lawyer will be discharged from further participation.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 14 January 2008