Phillips and Denton

[2007] FamCA 215

FAMILY COURT OF AUSTRALIA

PHILLIPS & DENTON [2007] FamCA 215

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Orders

Family Law Act 1975

Applicant: Mr Phillips

Respondent: Ms Denton

Independent Children’s Lawyer:

File Number: MLF 7954 of 1998

Date Delivered: 7 February 2007

Place Delivered: Melbourne

Judgment of: Carter J

Hearing Date: 7 February 2007

Representation

The Applicant: In person

Address for the Applicant:

The Respondent: In person

Address for the Respondent:

Independent Children’s Lawyer Counsel: Mr P.A. Marchetti

Independent Children’s Lawyer Solicitor: McCluskeys

Orders

BY CONSENT IT IS ORDERED

1. That all previous parenting orders be discharged.

2. That the father and mother share equal parental responsibility for the child, a son, born in March 1995 (“the child”).

3. That the child live with the mother.

IT IS FURTHER ORDERED

1. That the child spend time with and communicate with the father as follows:

   (a)during the Term 1 and Term 3 school holidays, from the first Saturday of those holidays until the last Saturday of those holidays, with consideration to be given by the parents to the child’s school holiday and/or sporting commitments;

   (b)for one-half of the Term 2 school holidays commencing on the first full day of the school term holidays;

   (c)during the long summer holidays as follows:

   (i)for the first half of the long summer holidays, commencing on the first day of the school holidays (and by way of clarification the first day of the holidays shall be the day following the last day of school term) in the 2007/2008 long summer holidays and alternating each year thereafter;  and

   (ii)for the second half of the long summer holidays in the 2008/2009 long summer holidays and alternating each year thereafter.

   (d)by way of clarification, when the child is to be with the father for one-half of a school holiday period, the number of days he will be with his father will be calculated as follows:

   (i)the number of days in the holiday period, including the days that the child travels, shall be counted; 

   (ii)that number shall be divided by two and if the result is not a whole number, that number shall be rounded up to the next whole number;

   (iii)the number of days will be inclusive of both the days the child travels.

   (e)during the school term, from after school on Friday until the commencement of school on Monday, provided that the father gives to the mother 21 days prior written notice of is intention to exercise such time, and such notice be forwarded to the mother by registered post provided that if the mother has prior commitments for the child, the father shall adhere to those commitments if they are school and/or sporting commitments;

   (f)by telephone:

   (i)each Sunday, during periods when the child is in the mother’s care;

   (ii)at Christmas, in the event the child is not in the father’s care;  and

   (iii)on the child’s birthday

   between 6pm and 7pm (EST), with all such calls to be initiated by the father to the mother’s mobile telephone number, and for the purpose of such calls the mother:

   (iv)do all things necessary to ensure that the child is available to talk with the father privately and uninterrupted;  and

   (v)do all things necessary to ensure that the telephone is fully operational and able to take calls for the entirety of the scheduled period;

   (vi)at all other reasonable times with the child to initiate calls to the father, and for such purpose the mother shall do all things necessary to give effect to the child’s wish to communicate with the father.

   (g)at such other times as may be agreed between the parties, in writing.

2. That for the purpose of arrangements pursuant to pars (4)(a) – (c) herein:

   (a)the father shall notify the mother, in writing and by registered mail, no less than 21 clear days prior to the scheduled periods when the child is to be in the father’s care of all flight arrangements involved for the child, including all flight details;  and

   (i)save for medical emergencies, such flight arrangements shall not be altered;  and

   (ii)in the event of a medical emergency the parent in whose care the child is at the relevant time shall notify the other parent forthwith by telephone and the flights shall be rescheduled by the father as soon as is reasonably practicable;  and

   (iii)the father shall forthwith provide the mother with the flight details;  and

   (iv)the father shall authorise the airline to confirm the flight details with the mother;  and

   (v)the parent in whose care the child is at the relevant time of the medical emergency shall provide a medical certificate to the other parent as soon as is reasonably practicable;

   (b)that in the event that the travel arrangements for the child referred to in par (5)(a) herein involve flights between Victoria and Western Australia (and vice versa) then all such flights shall involve a scheduled take off time of no earlier than 8:00am and a scheduled landing time of no later than 8:00pm;

   (c)that upon receipt by the mother of notification of the child’s flight arrangements, as referred to in par (5)(a) herein, the mother shall do all necessary acts and things to ensure that such arrangements are maintained and that the child travels at the specified time and on the specified flight.

3. That the father and mother forthwith:

   (a)separately attend and complete, as soon as practicable, an appropriate post separation parenting program (“the Program”) at an organisation as nominated by the Child Dispute Services Co-ordinator of the Family Court of Australia, Melbourne Registry;

   (b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;

   (c)provide to the nominated Program Co-ordinator a copy of the Family Report prepared by Mr N dated 9 August 2006;

   (d)pay and otherwise be responsible for all costs associated with the Program;  and

   (e)provide to the other parent evidence of completion of the Program.

4. That the mother forthwith:

   (a)Provide to the father he residential address and mobile telephone contact details, and thereafter each of the father and mother keep the other advised as to any changes in their residential address and telephone contact details;

   (b)Authorise the child’s school to forward to the father, at his expense, copies of all school reports and other material ordinarily provided to parents, and the father be at liberty to attend at all functions and events where parents are ordinarily invited, subject to the approval of the child’s school.

5. That each of the parents forthwith notify the other of any serious medical illness or injury affecting the child whilst in their respective care.

BY CONSENT IT IS ORDERED

1. That the mother shall not change the child’s school without the prior written consent of the father which shall not be unreasonably withheld.  If the parties cannot agree then the mother shall institute the family dispute resolution procedure as referred to hereafter.

2. That if the school or a teacher recommends in writing tutoring for the child, the mother shall immediately do all things necessary to provide additional tutoring as recommended by the school.

3. That the father shall be free to contact the child’s tutor once each term to consult regarding the child’s progress and such other contact may occur as agreed in writing with the mother.

4. A copy of any written assessment of the child’s academic progress provided to the mother by the child’s tutor(s) shall be forwarded to the father as soon as practicable.

5. That the child further communicate with the mother by telephone:

   (a)each Sunday during those periods when the child is in the father’s care;

   (b)at Christmas, in the event the child is not in the mother’s care;  and

   (c)on the child’s birthday, in the event such falls during a period when the child is in the father’s care

   between 6:00pm and 7:00pm (WA time), with such calls to be initiated by the mother to the father’s landline telephone number, and during such calls the father do all things necessary to ensure that the child is available to talk with the mother privately and uninterrupted.

6. That the father and the mother must not denigrate each other to or in the presence of the child, and must not permit any other person to denigrate each other to or in the presence of the child.

7. That pursuant to section 65L of the Family Law Act 1975 compliance with these orders be supervised, as far as practicable, for a period of 12 months by a Counsellor nominated by the Director of Child Dispute Services in the Melbourne Registry of the Family Court of Australia – and such Counsellor may report back at the request of the Court.

8. That the Independent Children’s Lawyer explain these orders to the child, and for such purpose the mother do all things to enable the child to attend upon the Independent Children’s Lawyer.

9. That the process to be used for resolving disputes about the terms or operation of these orders shall be as follows:

   (a)The parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any disputes or reaching agreement about changes to be made;

   (b)The parents pay the costs of the Family Dispute Resolution Practitioner equally;

   (c)In the event that the parents cannot agree on a Family Dispute Resolution Practitioner, the father shall nominate three practitioners and advise the mother in writing of their fees, experience and availability;

   (d)The mother shall choose one of the listed practitioners within seven days of receipt of the list from the father;

   (e)In the event the mother fails to choose a practitioner, then the father may choose one of the listed practitioners.

10. That before an application is made to a court for variation of these orders, each party is to take the steps referred to in par (13) herein.

11. That the appointment of the Independent Children’s Lawyer be discharged effective as of 28 February 2007.

12. That any documents produced on subpoena be returned to the person or institution providing the same.

13. That all extant applications be otherwise dismissed.

14. That these proceedings be removed from the list of cases awaiting determination.

15. 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.

BY CONSENT IT IS ORDERED

1. That the father contribute towards the costs of the Independent Children’s Lawyer, such contribution to be the sum of $3,120.00 after deduction of the contribution he has already made of $1,350 with payment to be made within 28 days of this day.

IT IS FURTHER ORDERED

1. That the mother contribute towards the costs of the Independent Children’s Lawyer the sum of $3,120.00 such sum to be paid within six months of this day or such further time as the mother and Victoria Legal Aid may mutually agree.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 7954 of 1998

Mr Phillips

Applicant

and

Ms Denton

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These proceedings commenced on Monday.  They concern arrangements to be made for the welfare of the child, a son, who was born in March 1995 and who has been the subject of disputation between his parents for most of his life.

2. The proceedings came before Morgan J in the year 2000 and were determined after a contested hearing.  There have been a number of further proceedings since then and the file has now grown to such a size that it needs a box to contain the individual parts.

3. The father appears on his own behalf, as does the mother.  Mr Marchetti of counsel appears for the Independent Children’s Lawyer.  I do not propose for the purposes of these brief reasons to set out any further background of an historical nature about these parents but one or two matters need to be chronicled.  The first is that the father lives in Perth, whereas the mother lives in Victoria.  The second is that these parties exhibit, probably to a degree that I have not encountered before, the utmost suspicion and distrust of each other and that has meant that this case, which could perhaps well have been accommodated within the two days that it had been originally envisaged, has taken longer than that.

4. As it happens, the larger questions were resolved relatively early after both parents had been able to be assisted by lawyers from different Legal Aid bodies.  It has been the detail of the arrangements which need to be made to give effect to those orders which has occupied the Court since then and which has involved further and extensive negotiations between the parties, again with the assistance of duty solicitors.  I commented yesterday that the father and the mother were very fortunate to have been able to get such assistance, given that they are both in employment and have not had legal representatives acting for them, at least in the proceedings before me, and given the time of these free duty lawyers that they have taken up.

5. Nonetheless, it is reassuring to recall that the first three of the orders which I will shortly pronounce were all agreed to by all parties; that is to say, the father, the mother and the Independent Children’s Lawyer.  Those are the main orders which I will note as having been made by consent, although it is fair to say that a number of other orders were also made by consent.  Various of the orders which I will pronounce were the subject of much discussion in Court and I assume elsewhere and in some instances were agreed to after I heard submissions.  In other instances, and I think the majority, they were the subject of rulings which I gave at the time.

6. I should also note, and I do so, briefly that the proposals of the father which were originally put before the Court envisaged 80 orders being made - that is in his initiating application - although it is appropriate to note that some of those were in the alternative.  Some of the orders which he continued to seek today are, I think, reflective of his immense distrust of the mother.  Whether or not that distrust is well deserved or not, I do not know, because I have not in the circumstances heard the evidence being tested.

7. At the same time, I should note that a number of the orders the mother sought in the Minute of Orders she provided for the purposes of the trial were incomprehensible at times and on further inquiry, I think it is fair to say, even taking into account the fact that she is not represented, were quite bizarre and clearly reflect her great distrust of the father.

8. I had hoped that the ill feeling and distrust that exists between these parties  might be ameliorated by the fact that they had compromised this Court case.  I hope that it will do something at least towards doing so, but I confess I have seen no signs of any distrust abating in the course of the submissions which were made to me about the various matters which were in dispute relating to some of the other arrangements which need to be made for the child.

9. Whether or not parties agree as to what orders should be made in respect to the child is one thing and it is obviously desirable that they do agree, but when the Court process is involved, it is not enough for the parents and indeed the Independent Children’s Lawyer to agree, it is a requirement that the Court be satisfied that the arrangements are in the best interests of the child or children in question.

10. It is always reassuring, when a child's interests are represented legally, to know that certain arrangements are either agreed to or otherwise by the Independent Children’s Lawyer.  In the present case, I have been assisted in this regard.  It is also heartening to have a Family Report, albeit an untested one in the present circumstances, and to note that the recommendations in that report closely echo at least the majority of the matters which are going to be the subject of these orders.

11. Again, it is heartening and the parents are most fortunate that they have had the benefit of assistance from the duty lawyers.  I am satisfied that the arrangements which have been negotiated, or alternatively which have been the subject of my orders, provide a result which represents the best interests of the child and which, if the parents can only put to one side their past and look to the future in a more positive frame of mind, will continue to promote and provide for the child, the best possible outcome.  These parents, like most parents, both have things to offer their son and if they go about their tasks and perform their obligations, then the child will have the benefit of two households in which he is well loved and well cared for and in which he can flourish.  That is the ambition that the parents should have for their son.  That is certainly the ambition that the Court has for the child.

12. I adopt Mr Marchetti’s submissions so far as the decision in Re David (Costs) (1997) FLC ¶ 92-809 is concerned and that of itself, in my mind, coupled with the matters I have already briefly touched upon in my Reasons for Judgment as to the attitude of the parties, one to the other, generate a situation where the general rule set out in s 117(1) of the Family Law Act 1975 is displaced.  I take into account, without going through them individually, the matters set out in s 117(2A).  I again note that I received from Mr Marchetti certain information as to the parties’ respective circumstances, that information being reflected in their Financial Statements which are on the Court file.

13. Looking at the matters under s 117(2A), the matter which principally affects me is the question of the conduct of the parties in relation to the proceedings.  I note that the orders for costs are limited to the costs of the trial rather than the total costs of the proceeding and that is a matter also which I would take into account.  I take into account that the mother has the child in her care far more for longer periods than does the father, but at the same time the father is paying child support for the child.

14. In my view, this is a case which requires an order for costs.  I note that the father consents to such an order and he is to be commended for that.  As far as the mother is concerned, I take into account what I have been told by the duty aid lawyer on her behalf and I will give her time to pay and if that time is not sufficient, then it is of course always open to her to negotiate further time to pay with Victoria Legal Aid.  There are, as seen, circumstances which justify the Court in making an order for costs and I will do so.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter

Associate:     

Date:              19 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as PHILLIPS & DENTON