Preston& Kenworth

[2013] FamCA 589

FAMILY COURT OF AUSTRALIA

PRESTON& KENWORTH	[2013] FamCA 589
FAMILY LAW – CHILDREN – Consent Orders – MRR v GR (2010) 240 CLR 461.

APPLICANT: Ms Preston

RESPONDENT: Mr Kenworth

INDEPENDENT CHILDREN’S LAWYER: Mr Murray Shaw, Solicitor

FILE NUMBER: BRC 1233 of 2009

DATE DELIVERED: 25 July 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 25 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	The Applicant Mother appearing in person
COUNSEL FOR THE RESPONDENT:	Mr George, Solicitor appearing for the Respondent Father

SOLICITOR FOR THE RESPONDENT: A M Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Malcolmson of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sandgate & Districts Family Law Centre

Orders

IT IS ORDERED BY CONSENT THAT:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT:

1. The Mother be entitled to change the name of the child, B Kenworth born …2008, to the following:

a.B Kenworth- C.

1. The Father’s consent in relation to the changing of the child’s name referred to in Order (2) hereof, be dispensed with.

1. The Father’s consent in relation to the issuing of a passport for the child be dispensed with.

1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS DIRECTED THAT:

1. The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

1. The child [B] born … 2008 live with the Mother in Australia.

2. The Mother have sole parental responsibility for the child.

3. The Father spend time with and communicate with the child as agreed between the parties.

4. The child is at liberty to communicate with the Father at any time she may request and the Mother will facilitate such communication.

5. The Father provide his email address and telephone number to the Mother to facilitate any communication between Father and child.

6. The Father is restrained from:

   a.removing the child from Australia;

   b.applying for or renewing any passports for the child;

   c.seeking to add the child’s details to the passport of any person.

7. The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the child, [B Kenworth] (also known as [B C]) born … 2008, on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on the watch list until further Order of the Court.

8. That paragraph 7 of this Order does not apply to any travel by the child when the child is accompanied by the Mother.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Preston & Kenworth 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 BRISBANE

FILE NUMBER: BRC 1233 of 2009

Ms Preston

Applicant

And

Mr Kenworth

Respondent

REASONS FOR JUDGMENT

1. I am not happy, as I have said.  I think that the independent children's lawyer has let us down a little bit, because I would have thought that I ordered that psychiatric report for a reason.   I wanted to ascertain if I possibly could the mother’s aversion to the father.  I am not able to do that because I have not had the opportunity of reading a report, since the independent children's lawyer has failed to comply with the order. 

2. I may say that if this matter was going on today and it had not gone on because of the lack of the psychiatric report, I would have considered probably very favourably an order that the independent children's lawyer personally pay the costs thrown away today.  However, that is unnecessary as it stands at this stage.

3. I would therefore consider that the draft order put before me, notwithstanding I have some difficulties with it, should be made in all the circumstances. 

4. I still think I have to consider the doctrine of MRR v GR (2010) 240 CLR 461, and I do say and say that regrettably this is a case where it is quite clear that there could not be joint parental responsibility. The parties cannot agree on virtually anything. There is a tremendous aversion by the mother towards the father. The child, on the evidence before me, particularly Ms D’s report, has little or no feeling for the father, has not seen him for any great extent, according to the mother’s evidence. She says 34 hours.

5. I have not sat down and added it up, but I am of the view that it is absolutely impossible for there to be joint parental responsibility.  There is no melding of minds.  So far as contact is concerned, I consider in this case that the best order that could be made for the welfare of the child is that, in effect, even though she is very young, the child, once she starts becoming interested in who her real father is, that in fact she will be able to indicate to her mother that that is the case and she will make contact with her father.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 25 July 2013.

Associate: 

Date:  25 July 2013