Pearce and Lear

[2008] FamCA 735

FAMILY COURT OF AUSTRALIA

PEARCE & LEAR [2008] FamCA 735

FAMILY LAW – CHILDREN - Parenting Orders – Agreed by Parties and lawyers but made as court orders

Family Law Act 1975 (Cth)

APPLICANT: MR PEARCE

RESPONDENT: MR LEAR

FILE NUMBER: MLC 2330 of 2007

DATE DELIVERED: 20 AUGUST 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 20 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS STOIKOVSKA

SOLICITOR FOR THE APPLICANT: MIDDLETONS

COUNSEL FOR THE RESPONDENT: MR MULVANY

SOLICITOR FOR THE RESPONDENT: T.J. MULVANY & CO

ORDERS

IT IS ORDERED:

1. THAT all previous parenting orders be discharged.

2. THAT the husband and the wife share parental responsibility for the child of the marriage ... (“the child”) born … September, 2005.

3. THAT the child live with the husband as follows:

   3.1      until 1 September 2009 in a two (2) weekly cycle;

   3.1.1in the first week from 8.30 a.m. Saturday until 6.15 p.m. Monday commencing 30 August, 2008;

   3.1.2in the second week from 9.00 a.m. Monday until 9.00 a.m. Tuesday commencing the 25^th August, 2008;

   3.3.3such other times as shall be agreed in writing incorporating the provisions in 3.3.4 and 3.3.5.

   3.2from 1 September 2009 until the cessation of the child’s first term at school (Preparatory class 2011);

   3.2.1in the first week from 6.15 p.m. Friday until 6.15 p.m. Monday;

   3.2.2In the second week from 9.00 a.m. Monday until 9.00 a.m. Tuesday;

   3.2.3such other times as agreed in writing incorporating the provisions in 3.3.4 and 3.3.5;

   3.3following completion by the child of his first term at school (Preparatory class) 2011 the child live with the husband as follows:

   3.3.1during school term commencing on the first weekend of Term 2, 2011 and with the cycle to continue as if a term holiday had not occurred from cessation of school on Friday until commencement of school on Monday on each alternate weekend and in the event that on such alternate weekend the Friday and/or the Monday is either a student free day or a Public holiday that weekend be extended to incorporate the student free day or Public holiday;

   3.3.2one half of the child’s first, second and third term holidays alternating halves each term and in the event that the Easter period forms part of the first term holidays the Easter period be included for the purposes of the determination as to the number of days that the child spends in each household;

   3.3.3for one half of the long summer vacation, excluding Christmas arrangements, and in the event of any dispute as to time the husband and the wife alternate such period annually provided always that the child shall have returned to the wife not less than two (2) clear days prior to commencement of his school year.

   3.3.4by telephone communication with the husband to facilitate a call to the wife’s mobile telephone each Thursday and alternate Saturday at 6.00 p.m. and the wife to ensure her mobile phone is charged and available to receive calls.

   3.3.5

   3.3.5.1for the child’s birthday and each of the parents’ birthdays if the child’s birthday is with the husband, the husband’s time be suspended for two (2) hours on a weekday and four (4) hours on a weekend at times to be agreed in writing seven (7) days prior to the birthday and in the event that the child or the parents’ birthday falls during the time the child lives with the wife, the wife’s time be suspended for identical periods to be agreed in writing seven (7) days prior to the birthday.

   3.3.5.2for Father’s Day from 6.00 p.m. on Saturday preceding Father’s Day until 6.00 p.m. on Father’s Day and the live with period be suspended for an identical period on Mother’s Day if it occurs during the father’s live with period pursuant to these Orders.

   3.6such further or other times as shall be agreed in writing;

   3.7notwithstanding anything hereinbefore contained for the purposes of celebrating Christmas, the child be in the respective care of the husband and the wife as follows:

   3.7.1in 2008 and each alternate year thereafter (even years) with the husband from 3.00 p.m. Christmas Eve until 3.00 p.m. Christmas Day and the wife from 3.00 p.m. Christmas Day until 6.00 p.m. on 26 December.

   3.7.2in 2009 and each alternate year thereafter (odd years) with the wife from 3.00 p.m. Christmas Eve until 3.00 p.m. Christmas Day and the husband from 3.00 p.m. Christmas Day until 6.00 p.m. 26 December.

   3.8for the period commencing 1 January, 2009 and ceasing at the conclusion of the first term of school in 2011, each of the husband and the wife be at liberty to spend a holiday period of seven (7) consecutive days (six nights) on three (3) separate occasions each calendar year provided always:

   3.8.1in the event of the husband seeking such period, that period is to be inclusive of and not additional to the husband’s time pursuant to these orders as provided in paragraphs 3.1 and 3.2 inclusive,

   3.8.2that each parent give the other not less than thirty (30) days notice of the holiday periods proposed;

   3.8.3no proposed period by one parent be within two (2) calendar months of any other period nominated by that parent;

   3.8.4if the wife’s proposed period is in the husband’s residential time, the wife provide to the husband make up time for that portion of the time foregone by the husband.

   3.9  The child shall live with the wife at all other times.

4. THAT notwithstanding the provisions of paragraph 2 hereof, the wife consult with the husband if necessary with the assistance of a Family Relationship Centre, in relation to matters concerning the child’s education (including kindergarten) and/or health and in the event that after such consultation any matters remain disputed, the decision of the wife shall prevail.

5. THAT the Husband and the Wife not alter their respective residential addresses outside of a radius of 50 kilometres of their current address without giving the other not less than sixty (60) days prior written notice, including such notice:

   5.1details of the new address and its amenities

   5.2details of any persons other than the child that the parties propose reside at such address

   5.3any suggestions for any variations of these Orders.

6. THAT the Husband and the Wife ensure that a communication book travels with the child between the households of the Husband and the Wife for the purposes of recording and relaying information relevant to the child’s immediate best interests including but not limited to issues of health, social commitments, social invitations, celebratory functions and like matters.

7. THAT save and except for those periods wherein the child’s residence with the husband commences or ceases from either pre-school, school or Childcare or unless there has been an exchanged written agreement between the husband and the wife, all changeover occur in the carpark of T Supermarket.

8. THAT each of the Husband and the Wife by themselves, their servants and agents be and are hereby restrained from assaulting, harassing, denigrating, criticising the other or a member of the other’s family or attempting to so do, in the sight and/or hearing and/or presence of the child, or at all.

9. THAT notwithstanding anything hereinbefore contained in the event that the child is to spend more than three (3) consecutive nights away from the principal private residence of the wife or the husband each parent ensure that the other is informed in writing of such fact and of the place at which it is proposed that the child will be staying and the length of time of such period.

10. THAT in the event of any parenting issue not able to be resolved between the parties and not subject to Paragraph 4 hereof, the parties be hereby directed to attend the Ringwood Family Relationships Centre or such other similar facility if the parties agree.

11. THAT without either party admitting the necessity for this Order each be and are hereby restrained from ingesting any non-prescribed and illicit substances and/or alcohol to excess during any period that the child resides with each of them.

12. THAT all extant Applications and Responses be otherwise dismissed and all matters be removed from the docket of Young J.

13. THAT pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations that 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 CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the mother and solicitor appearing as Counsel for the father.

IT IS DIRECTED

1. That the ex tempore Reasons for Judgement given 20 August 2008 be transcribed, a copy placed upon the Court file and copies be forwarded to the solicitors for the husband and the wife to forward to the parties.

2. THAT handwritten Minutes be marked Exhibit A and placed on the Court file.

THE COURT NOTES:

(A)THAT Justice Young has directed any further proceedings for enforcement of these orders be issued in the Federal Magistrates Court.

(B)THAT these orders are orders of the Court, each of the parties having instructed their Counsel that Reasons for Judgement are not required and that this day following Rulings on parenting time the parties negotiated these Orders.

(C)THAT the husband has requested his first holiday period include all or part of 5 to 11 January 2009 pursuant to Paragraph 3.8.1.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2330 of 2007

MS PEARCE

Applicant

And

MR LEAR

Respondent

REASONS FOR JUDGMENT

1. The proceedings in the matter of Lear v Pearce are before me for a Less Adversarial Hearing.  The matter initially came before me on 18 June 2008 and on that occasion I ordered a family report to be prepared for the parties and the court and in that report for there to be considered matters of equal shared parental responsibility and with whom the child, a son, born in September 2005, would live and what time would be spent with the other parent.

2. Following upon that order, a substantial report was prepared by Mr E, consultant, and that report dated 11 July 2008 is in evidence.  I record that I have wholly read that report and the observations and recommendations of its author.

3. The primary matter before the court concerned the parenting issues which the parties have and orders sought for the child.  I do not propose to set out the factual background to the marriage; that is covered in the earlier material filed with the court.

4. Subsequent to the first day's hearing, there were further documents filed with the court.  The application of the father filed by his solicitor, Mr Mulvany, sought extended periods for the child to live with him and indeed the affidavit of the father ideally sought to bring about a live-with arrangement where the child shared time with both parents. 

5. Subsequently, and on 1 August 2008, there was an amended response to the final orders filed and there are there more particular orders set forth for the child, and the reality is that the competing orders sought by the parents were significantly different. 

6. The last document filed and which I read was an affidavit, 15 August 2008, which the wife filed.  There were some issues raised and there may have been a related application submitted to the court if the hearing had have continued as to the relevance of that affidavit and the appropriateness of its filing.  Those matters, however, were effectively put to one side in the context of the out‑of‑court discussions and the directions which I made and which have resolved in matters being finalised out of court in the context that I will summarise in these extempore reasons for judgment.

7. This case highlighted a very different parenting approach by the mother and father and the orders sought by each of them were significantly different from the other.  It is reasonably easy to assess two different personalities but I intend to make no criticism of any adult in this case, given the matter has resolved.  I have endeavoured to highlight the focus is and at all times must be upon the child and his best interests.

8. It is proper to record that there was a significant level of enthusiasm for the court contest and highlighting the alleged abuse or improper behaviour or lack of care or ability of the other parent.  It may be that there was clearly some very inappropriate conduct that needs to be readdressed as a matter of urgency.  Again, I withhold any further observations or comments on those matters.

9. The bigger picture is that these parents are responsible for the upbringing of their child. There must be a level of communication, no matter how difficult. I have conveyed to both parents that they have a primary responsibility pursuant to section 60B of the Family Law Act 1975 to work through issues, to talk and discuss their child and to resolve matters out of court. Neither family are wealthy. The money that was being spent on this case, at the specific instructions of both clients, was out of context with their income and financial circumstances and in the course of the hearing, I made the observation that it would have been moneys that would be better used in the education of the child.

10. Ultimately, there were matters of issue between the parties and at the request of Mr Mulvany, who appeared for the husband, and Ms Stoikovska of counsel who appeared for the wife, I made various directions.  In effect, the matter proceeded by way of a submission hearing.  I was happy to accommodate the request of counsel and the parties in that regard.  There was no evidence given.  In any event, Mr E, the family consultant, was not in Melbourne and was unavailable to give evidence in this hearing. 

11. I take some care in highlighting that the orders in this case came about as a result of the hard work and out-of-court discussions of counsel and solicitors.  Whilst I gave guidelines and directions, there are no extempore judgments that I delivered in the course of this one-day hearing. 

12. The orders that are now before the court are substantial and cover all aspects of the child’s life and living environment with his parents.  They are finetuned by the clients, working with their legal advisers.  They may follow the general guidelines of the court which I highlighted in my observations or directions, but they are largely the creation of the clients themselves.

13. I am content for these orders not to be marked as consent orders because there were some parameters where the clients and solicitors negotiated within the framework that I had established as being reasonable.  I emphasise, however, and the clients know and do not require any extended reasons for judgment on any of the issues that were discussed in the hearing.

14. The intent of these orders is that they finalise all matters in this court.  These parents must now assume responsibility for the care, welfare and upbringing of the child and their responsibility is to work through issues themselves or, as is provided for in the orders, by attending upon a family relationship centre.  I will specifically follow the recommendation of Mr E in paragraph 47(vi) of his report in that regard.  I find that these orders are in the child’s best interest.

15. I have expressed the view in the course of this hearing that any enforcement proceedings in this matter or any other proceedings generally should be issued in the Federal Magistrates Court.  There are no significant legal issues.  The issues of fact are only complex because of the attitude, personality or requirements of the parents, and their primary obligation is to work through these issues themselves with each other.

16. I acknowledge the hard work of the legal practitioners out of court in arriving at these minutes of orders and the variations notations thereto which Mr Mulvany has kindly agreed to engross and forward to the court.  The effect of these orders are to conclude all proceedings and this matter will be removed from my docketed list of cases and all extant applications, both interim and final, will be dismissed.

17. I have delivered these brief extempore reasons by way of an overview of the outcome of the case.  I will have these reasons transcribed, placed upon the court file and made available to the parties.  I will leave it to Mr Mulvany to advise Mr E that the matter has concluded and that his report and recommendations were of assistance to the court but more particularly to each of the parties.

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

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Associate: