PETERS & ANDERS

FAMILY COURT OF AUSTRALIA

PETERS & ANDERS

[2015] FamCA 926

FAMILY LAW – CHILDREN – Best interests – final orders made by consent

Family Law Act 1975 (Cth)

APPLICANT:

Mr Peters

RESPONDENT:

Ms Anders

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

6900

2014

DATE DELIVERED:

14 August 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

14 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Scriva

SOLICITOR FOR THE APPLICANT:

Taylor Whelan & Whelan

COUNSEL FOR THE RESPONDENT:

Mr Brown QC

SOLICITOR FOR THE RESPONDENT:

HQ Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Elleray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That all previous Orders be discharged.
That the mother and father have equal shared responsibility for the child B born … 2010 (“the child”).
That the child live with the mother.
That the child spend time with the father as follows
(a)each Tuesday from 9:30am until 5:30pm commencing 18 August 2015 until the 6 October 2015;
(b)each Tuesday from 9:30am until Wednesday 5:30pm commencing 13 October 2015 until 8 December 2015;
(c)each Tuesday from 9:30am until Thursday 5:30pm commencing 15 December 2015 until the child commences school in 2016;
(d)upon the child commencing school in 2016, in a two week cycle as follows:
(i)as from the first week of term one in 2016, from the conclusion of school on Friday to the commencement of school on Monday and fortnightly thereafter;
(ii)as from the second week of term one in 2016, from the conclusion of school on Thursday until the conclusion of school on Friday and fortnightly thereafter until the end of the academic year in 2016 and then as from the second week of term one in 2017, from the conclusion of school on Wednesday until the conclusion of school on Friday and fortnightly thereafter;
(e)for half of the school term holidays being the first half in even numbered years and the second half in odd numbered years.
(f)for half of the long summer school holidays being the first half in even numbered years and the second half in odd numbered years.
(g)as otherwise agreed between the parties in writing.
That the child spend time with her parents during the Christmas periods as follows:
(a)commencing in 2015 and each alternate year, with the father from 3:00pm Christmas Eve until 3:00pm Christmas Day and with the mother from 3:00pm Christmas day until 3:00pm Boxing Day;
(b)commencing in 2016 and each alternate year, with the mother from 3:00pm Christmas Eve until 3:00pm Christmas Day and with the father from 3:00pm Christmas day until 3:00pm Boxing Day;
(c)or as otherwise agreed between the parties
That the child spend time with her parents on her birthday as follows:
(a)if her birthday falls on a non school day, from 9:30am until 2:30pm with the father and from 2:30pm until 7:30pm with the mother;
(b)if her birthday falls on a school day, from the conclusion of school until 6:30pm with the parent the child would not otherwise be spending time that day.
That the child spend time with her parents on their birthday as follows:
(a)if the birthday falls on a non school day from 9:30am until 5:30pm with the parent having the birthday;
(b)if the birthday falls on a school day, from the conclusion of school until 6:30pm with the parent having the birthday.
That the child spend time from 9:30am until 5:30pm, with the mother on Mother’s Day and with the father on Father’s Day.
That the child communicate by telephone with the parent she is not spending time with every Monday, Thursday and Saturday, with calls being initiated by the parent seeking communication between 5:00pm and 5:30pm or such other times as may be agreed.
That for the purpose of telephone communication provided in these orders the parent spending time with the child shall:
(a) ensure the child is available to receive the telephone call;
(b) ensure that the child has privacy during the telephone call;
(c)arrange for the child to have make up telephone communication in the event the telephone call does not proceed on any occasion.
That handovers other than those that occur at the child’s school shall occur at the home of the mother at the commencement of the father’s time and at the home of the father at the conclusion of the father’s time, unless the parties otherwise agree in writing.
That the mother and father be and are hereby restrained as follows:
(a)from consuming alcohol to excess during any time the child is spending time with them;
(b)using illicit substances during or 24 hours prior to the child spending time with them;
(c)discussing these proceedings or denigrating the other parent in the presence of the child;
(d)taking the child to any psychologist, including Ms C, without the prior written consent of the other parent.
That the mother and the father be and are hereby restrained from videoing or questioning the child in relation to the allegations made in these proceedings.
That the parents communicate by way of email or text and that such communication be restricted to matters relating to the child.
That the mother and father advise each other and keep each other advised as to their current address and telephone contact details and advise as to any change thereto within 24 hours.
That the mother and father advise each other as to the details of any medical practitioner or allied health professional attended upon by the child and that each parent is hereby authorised to consult and confer with any person providing treatment to the child.
That the mother and father advise each other as to any emergency medical treatment required or received by the child as soon as practicable.
That the mother and father are authorised to attend the child’s school, including kindergarten, and to attend all functions and meetings usually held for parents and to request and receive, at their own expense, any information they may require such as reports, newsletters, photographs and the like.
That the mother forthwith, and at her own expense, undertake therapy with a psychologist with expertise in dealing with family law matters, for so long as directed by that psychologist and to facilitate that therapy the mother provide to the psychologist a copy of the family report dated 20 July 2015 and a copy of the affidavit of Dr D sworn 24 May 2015.
That the order appointing the Independent Children’s Lawyer be discharged.
That the Family Consultant be requested to meet with the child to explain to her these orders in accordance with her recommendations contained at page 45 of the Family Report dated 20 July 2015.
That the trial listed for the 7 September 2015 be vacated.
Pursuant to section 65DA(2) and section 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 the Orders are set out in Annexure A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Anders 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 6900 of 2014

Mr Peters

Applicant

And

Ms Anders

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The matter of Peters and Anders is listed before me for mention on 13 August 2015. The purpose of the mention hearing was to confirm the matter's readiness to proceed to a final hearing, which is listed before me to commence on 7 September 2015. Fortuitously, the family report prepared by Ms E had been released to the parties prior to the mention hearing, the date of that report being 20 July 2015.
The proceedings relate to the parenting arrangements for the parties' daughter, the child, who is aged five years. This case is a Magellan matter, it involving very serious allegations of abuse by the father towards the child.
The parties, at the mention hearing, sought the opportunity to have the matter stood down to enable them to consider the family report and to, more importantly, consider the recommendations in that report. Happily from the child's perspective, the parties have returned to Court today, having signed a minute of order which will finalise the proceedings with respect to the child's future care.
The mother, through her counsel, has conceded that she does not allege that the father poses an unacceptable risk to the child. The proposed orders provide for an arrangement whereby the parties will share parental responsibility for the child, where the child will live with her mother and where she will spend significant and substantial time with her father on a graduated regime, which will culminate by 2017, in the child spending five nights per fortnight with the father.
There are detailed orders which make provision for the child to spend time with both her parents on special days, including her birthday, Christmas and her parents' birthdays. There are also detailed orders which consider arrangements in terms of both parents having the opportunity to engage with the child’s school and to regulate how the parents will communicate with each other in relation to all aspects of the child’s care. The parties are to be commended for the careful thought that they have given to their future parenting arrangements.
The orders largely reflect the recommendations made by the family consultant in her family report. I have read the material that has been filed and the family report. Having regard to the history of the matter and the observations made by Ms E in her report, I am satisfied that the proposed minute is in the child’s best interests. Accordingly I will make orders in the terms of the minute that has been signed by the parties.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 14 August 2015.

Associate:

Date: 14 August 2015

[2015] FamCA 926

14 August 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies

Statutory Construction