FAMILY COURT OF AUSTRALIA
| PILLAI & DOSHI (NO. 2) | [2011] FamCA 36 |
| FAMILY LAW – CHILDREN – Parenting proceedings – Split hearing – Litigant in person – Appearance of independent children’s lawyer – Apprehended violence orders – Issues of family violence – Sole parenting – Time to be spent with children on supervised basis – Family contact centre – Assessment of best interests of children – Husband’s refusal to accept supervision – Property and financial matters to be separately heard |
| Family Law Act 1975 (Cth) ss 60CA, 61DA, 61B, 60CC(2), (3) and (4) |
| APPLICANT: | MR PILLAI |
| RESPONDENT: | MS DOSHI |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | DGC | 664 | of | 2007 |
| DATE DELIVERED: | 3 FEBRUARY 2011 |
| PLACE DELIVERED: | MELBOURNE |
| PLACE HEARD: | MELBOURNE |
| JUDGMENT OF: | YOUNG J |
| HEARING DATE: | 20, 21, 22 and 23 DECEMBER 2010; 5 JANUARY 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Ms McCreadie |
| SOLICITOR FOR THE RESPONDENT: | PERRY WESTON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McNamee |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | TOWNSEND WYLDE LAWYERS |
Orders
IT IS ORDERED:
THAT all previous children and parenting orders made in this Court be discharged.
THAT the wife have sole parental responsibility for the children of the marriage S born … June 2004 and K born … January 2007 (“the children”).
THAT the children live with the wife.
THAT any period of time as provided for in Order 5 hereof that the husband would spend with the children be suspended pending his:
(a)completion of the intake documents for supervised time to be spent at the G Children’s Contact Service (“the Contact Service”) ; and
(b)undertaking at his expense a psychiatric assessment by a qualified psychiatrist, but not necessarily Dr D, as approved of by the Independent Children’s Lawyer (while they remain acting in these proceedings) or otherwise by the wife’s solicitor or the Court.
THAT the husband spend time with the children on a supervised basis at the Contact Service on such dates and times as can be accommodated but to commence with two hours each fortnight on a weekend, and both parents are to do all acts and things so as to facilitate such supervised time commencing as soon as the husband has complied with the requirements of the preceding order.
THAT if the husband does not comply with paragraphs 4(a) and (b) hereof within 120 days of the date of these Orders then his time with the children as provided for in paragraph 5 hereof be suspended.
THAT in the event that the husband elects not to accept supervised time with the children at the Contact Service and undertake his required actions in that regard then the wife hereafter forward to the husband each six months two photographs of the children.
THAT the wife authorise any kindergarten/child care centre/school attended by the children or either of them to provide to the husband, at his expense, (if any) copies of all reports, newsletters and photograph order forms and such like information…
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- Pillai and Doshi (No 2) [2011] FamCA 36
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- [2011] FamCA 36
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CaseChat Overview and Summary
The court was required to determine the primary caregiver for the children, the extent and nature of the husband's time with the children, and the conditions under which such time could occur. Further issues included the husband's ability to file future parenting applications, the children's travel arrangements, and the communication between the parents regarding the children's welfare and schooling. The court also addressed the conduct of the parents towards each other in the presence of the children and the husband's consumption of alcohol.
Young J ordered that the wife have sole parental responsibility for the children and that they live with her. The husband's time with the children was to be supervised at a contact service, contingent upon his completion of intake documents and a psychiatric assessment. His time was to commence with two hours fortnightly, with provisions for suspension if he failed to comply with the conditions within 120 days. The court also made orders regarding the exchange of photographs, access to school and medical information, and communication between the parents. Injunctions were imposed restraining the parents from denigrating each other in the children's presence and from discussing court proceedings with the children. The husband was also restrained from consuming alcohol before or during supervised time. The children were permitted to travel to Fiji with the wife, and the husband's consent for the child K's passport was dispensed with. The husband was further restrained from filing further parenting applications until specific conditions were met. All previous children and parenting orders were discharged, and all applications, except for property and financial matters, were dismissed. The appointment of the Independent Children's Lawyer was discharged one month after judgment.
Orders
Orders of the court
IT IS ORDERED:
1.
THAT all previous children and parenting orders made in this Court be discharged.
2.
THAT the wife have sole parental responsibility for the children of the marriage S born … June 2004 and K born … January 2007 (“the children”).
3.
THAT the children live with the wife.
4.
THAT any period of time as provided for in Order 5 hereof that the husband would spend with the children be suspended pending his:
(a) completion of the intake documents for supervised time to be spent at the G Children’s Contact Service (“the Contact Service”) ; and
(b) undertaking at his expense a psychiatric assessment by a qualified psychiatrist, but not necessarily Dr D, as approved of by the Independent Children’s Lawyer (while they remain acting in these proceedings) or otherwise by the wife’s solicitor or the Court.
5.
THAT the husband spend time with the children on a supervised basis at the Contact Service on such dates and times as can be accommodated but to commence with two hours each fortnight on a weekend, and both parents are to do all acts and things so as to facilitate such supervised time commencing as soon as the husband has complied with the requirements of the preceding order.
6.
THAT if the husband does not comply with paragraphs 4(a) and (b) hereof within 120 days of the date of these Orders then his time with the children as provided for in paragraph 5 hereof be suspended.
7.
THAT in the event that the husband elects not to accept supervised time with the children at the Contact Service and undertake his required actions in that regard then the wife hereafter forward to the husband each six months two photographs of the children.
8.
THAT the wife authorise any kindergarten/child care centre/school attended by the children or either of them to provide to the husband, at his expense, (if any) copies of all reports, newsletters and photograph order forms and such like information generated in relation to the children, or either of them, and which they normally provide to parents, the wife to advise the husband in writing of the kindergarten/child care centre/school attended by each of the children and to advise of any changes thereto.
9.
THAT the wife do all such acts and things in order that the husband be authorised to communicate with any medical practitioner or allied health professional engaged by her for the children, subject to any reasonable conditions imposed and the wife is to advise to the husband in writing of their contact details and keep such contact details regularly updated.
10.
THAT the wife and the husband keep the other advised at all times of their respective residential address and telephone contact number and immediately advise of any changes thereto.
11.
THAT the wife advise the husband immediately in the event that the children or either of them suffers any serious illness or injury, together with the name, address and telephone number of any health professional or health facility attended by the children and authorise such person or facility to provide any reasonable information requested by the husband relating to the health of the children or either of the children, subject to any conditions imposed by such person or facility.
12.
THAT the wife, the husband, and their servants and agents be and are hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of that parent’s household or family in the presence or hearing of either or both of the children or permitting any other person to do so;
(b) discussing these court proceedings with either of the children.
13.
THAT the husband be and is restrained by injunction from consuming alcohol during and for 24 hours prior to any time he may spend with either or both of the children.
14.
THAT the names of the children be forthwith removed from the Airport Watch List and the solicitor for the wife notify in writing the Australian Federal Police and all required authorities of this order.
15.
THAT the children be permitted to depart the Commonwealth of Australia, in the company of their mother, for the purposes of a holiday to Fiji.
16.
THAT the wife be authorised to apply and forthwith obtain an Australian passport for the child K born … January 2007 so as to enable him to travel in and out of the Commonwealth of Australia.
17.
THAT the consent of the husband to the issuing of such an Australian passport for K be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
18.
THAT the wife hold in safe custody the Australian passports of the children and her solicitor be authorised to return to her the passport of the child S.
19.
THAT the husband forthwith return to the wife the original birth certificates for the children so as to facilitate her passport application on their behalf.
20.
THAT the wife, her servants and agents, are restrained from bringing or permitting either of the children to be brought into contact with a community priest known as ES, a person known to the parties.
21.
THAT the husband be restrained from filing in this Court or in the Federal Magistrates Court any further application in relation to children and parenting orders until he has:
(a) complied with the requirements of Order 4 hereof;
(b) provided to the wife’s solicitors and the Court a true copy of a psychiatric assessment and report upon himself;
(c) has spent regular supervised time over four (4) months with the children pursuant to Order 5 hereof; or
(d) a Judge of the Family Court otherwise orders that he be entitled to file a further application.
22.
THAT pursuant to s 65DA(2) and s 62B, 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.
23.
THAT the appointment of the Independent Children’s Lawyer be discharged on a date one (1) month after the delivery of this Judgment and if any appeal is filed then at the conclusion of that process.
24.
THAT otherwise all children’s and parenting applications (but not property and financial applications and the departure from the child support orders) be dismissed.
25.
THAT the amended orders as sought by the husband in his final submissions and as recorded in document 127 in the Court Index, paragraphs 1-27 (inclusive) and paragraphs 30, 31 and 32 thereof be dismissed.
26.
THAT all costs of and incidental to this hearing be reserved pending further application and submissions.
IT IS CERTIFIED
27.
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the wife and the Independent Children’s Lawyer.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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