RICARD & RICARD

[2020] FamCA 20

FAMILY COURT OF AUSTRALIA

RICARD & RICARD [2020] FamCA 20

FAMILY LAW - CHILDREN - Best interests – where the parties reached final consent on the first day of trial – where the Independent Children’s Lawyer does not consent to the agreement – where the consent orders provide for unsupervised time –  where consent orders are in the best interests of the children

Family Law Act 1975 (Cth)
APPLICANT:	Mr Ricard

RESPONDENT: Ms Ricard

INDEPENDENT CHILDREN’S LAWYER: Julie Harrington Solicitor

FILE NUMBER: BRC 8141 of 2017

DATE DELIVERED: 13 January 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 13 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Neaves

SOLICITOR FOR THE APPLICANT: D M E Law Pty. Ltd.

COUNSEL FOR THE RESPONDENT: Mr McGregor

SOLICITOR FOR THE RESPONDENT: Lander Solicitors Qld

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Julie Harrington Solicitor

Orders

IT IS ORDERED THAT

1. All parenting plans and previous parenting orders are discharged.

AND IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

1. In the terms of the Minute of Order Annexure “A”.

AND IT IS FURTHER ORDERED THAT

1. The original Minute of Order signed by the parties be placed and kept on the Court file.

2. Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.

3. The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.

4. All outstanding Applications are dismissed.

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

1. The parties equally share parental responsibility in relation to X born … 2009 and Y born … 2012.

2. The children live with the Mother.

3. X spend unsupervised time with the Father as agreed in writing otherwise as follows:

   (a)from 12 noon to 5.00 pm Sunday each alternate weeks for the first six (6) occasions commencing on 26 January 2020;  and

   (b)from 9.00 am to 5.00 pm on each alternate Sunday afternoon for the seventh to tenth occasion that X spends time with the Father;  and

   (c)each alternate weekend from 9.00 am Saturday until to 5.00 pm Sunday from the eleventh occasion that the children spend time with the Father onwards.

4. Y spend time with the Father as agreed between the parties and in default of agreement as follows:

   (a)from 3.00 pm to 5.00 pm each alternate Sunday in a park near to the residence of the Mother, for the first two (2) months after the date of this Order commencing on 26 January 2020;  and

   (b)from 3.00 pm to 5.00 pm each alternate Sunday unsupervised for the next two (2) months thereafter;   and

   (c)from noon to 5.00 pm each alternate Sunday.

5. Y’s time with the Father will coincide with the time that X spends with the Father, so that if X does not attend Y will not spend time with the Father.

6. In even numbered years X shall spend time with the Father from 12 noon Christmas Eve and until 3.00 pm Christmas Day and Y spend time with the Father from 9.00 am until noon on Christmas Day.

7. In odd numbered years X shall spend time with the Father from 3.00 pm on Christmas Day until 5.00 pm Boxing Day and Y shall spend time with the Father from 3.00 pm until 5.00 pm on Christmas Day.

8. If the children are not otherwise with the Father on Father’s Day then X spend time with the Father from 5.00 pm on the Saturday before Father’s Day until 5.00 pm Father’s Day and Y spends time with the Father in Father’s Day from noon until 5.00 pm and that any provision for time that is inconsistent with this Order be suspended so as to facilitate time under this paragraph.

9. If the children are to be with the Father on Mother’s Day, then X spend time with the Mother from 5.00 pm on Saturday before Mother’s Day until 5.00 pm Mother’s Day and Y shall remain with the Mother on Mother’s Day that any provision for time that is inconsistent with this Order be suspended so as to facilitate time under this paragraph.

10. The Mother shall be responsible for dropping off the children to the Father’s home but she shall not enter the Father’s home past the boundary fence line.

11. The Father shall be responsible for dropping off the children to the Mother’s home but he shall not enter the Mother’s home past the boundary fence line.

12. The Father be at liberty to communicate with the children by telephone, FaceTime or other electronic means between 6.30 pm and 7.00 pm each Tuesday and Thursday and the Mother shall respect the children’s privacy during the communication by making a telephone capable of the electronic means of communication available to the children in a private room away from other members of the household.

    Birthdays

13. If the children are to be with the Father on the Mother’s birthday then X shall spend that day with the Mother:

    (a)if the Mother’s birthday is on a Saturday then X shall be delivered to the Father at 9.00 am Sunday;  and

    (b)if the Mother’s birthday is on a Sunday then X will be returned to the Mother at 5.00 pm on the Saturday.

14. The children spend time with the Father at times as agreed between the Mother and the Father, and failing agreement:

    (a)on the children’s birthdays:

    (i)            if a weekday then from 3.00 pm until 7.00 pm;  and

    (ii)           if a weekend from 9.00 am until 2.00 pm;  and

    (b)on the Father’s birthday:

    (i)if a weekday from 3.00 pm until 7.00 pm;  and

    (iii)if a weekend X shall spend time with the Father from 5.00 pm on the day before his birthday until 5.00 pm on his birthday and Y shall spend time with the Father from 9.00 am until 5.00 pm on his birthday,

    and any provision of time under this Order that is not consistent with this paragraph be suspended.

Specific issues

1. The parties have liberty to give X’s counsellor a copy of each of the Family Reports.

2. The Father attend upon X’s counsellor, or such other counsellor as may be recommended to him, to ascertain if the counsellor has qualifications to assist him in rebuilding his relationship with X.

3. If the counsellor referred to in the previous Order, has qualifications and consents to counselling the Father and X, then the Mother shall ensure X attends on the counsellor at all such times as reasonably required.

4. The parties each keep the counsellor informed of their contact details.

5. The parties each attend on the counsellor if and when the counsellor reasonably requests.

Miscellaneous Parenting Orders

1. During the time the children are with either parent, each parent shall:

   (a)respect the privacy of the other parent and not question the children about the personal life of the other parent and use their best endeavours to ensure that other persons not question the children about the personal life of the other parent;  and

   (b)speak of the other parent respectfully and use their best endeavours to ensure that other persons speak of the other parent respectfully; and

   (c)not denigrate or insult the other parent, or any members of their respective families, or any associate or partner of the other parent, in the presence or hearing of the children and use their best endeavours to ensure that other persons do not denigrate or insult the other parent or any members of their respective families, or any associate or partner of the other parent in the hearing or presence of the children.

2. By this Order both parents are at liberty to attend and/or be involved in any extracurricular activity of the children or school event to which parents are invited to attend.

3. The parents authorise, by this Order, the schools and/or after school care centre/s attended by the children, to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, newsletters, letters and general notices, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).

4. By this Order each parent authorise the other to obtain medical and health care information in relation to the children and authorises health, medical and education providers to discuss the children’s health and education needs with either parent.

5. For the purposes of these Orders, save in the event of an emergency the parents are to communicate by email.

6. In the event that the children require medical treatment or prescription medication when with a parent, then that parent is to inform the other parent of this as soon as practicable.

7. Each parent is to ensure that prescription medication travels with the children at changeovers.

8. Within 24 hours of the date of these Orders each parent is to advise the other the parent of their residential address and a contact telephone number and shall advise each other within 24 hours of any change to those details.

9. At all reasonable times each parent is to facilitate any request made by the children for telephone contact with the other parent.

10. The process to be used for resolving disputes about the terms or operation of these Orders or future parenting matters shall be as follows:

    (a)a party shall notify the other parties in writing of the matter to be resolved;  and

    (b)the other parties shall respond in writing within seven (7) days as to their agreement or otherwise;  and

    (c)where agreement is reached which requires a change to these Orders then the parties will take steps to have their agreement formalised by way of consent orders;  and

    (d)where agreement is not reached then the parties shall consult with a Family Dispute Resolution practitioner or Family Relationship Centre to assist with resolving any dispute or reaching agreement about changes to be made;  and

    (e)they shall pay the costs of the Family Dispute Resolution practitioner equally;  and

    (f)in the event that they cannot agree on a Family Dispute Resolution practitioner:

    (i)the Father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;  and

    (ii)the Mother shall choose one of the listed practitioners within seven (7) days of receipt of the list;  and

    (iii)if the Mother fails to choose then the Father may choose.

11. Unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the children or otherwise, each party is to take the steps referred to in the preceding Order.

12. The parents are restrained from consuming alcohol or illicit substances for the 12 hours prior to and during the time that the children are in each parent’s respective care.

13. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 Fact Sheet attached and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ricard & Ricard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8141 of 2017

Mr Ricard

Applicant

And

Ms Ricard

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the parents of the two children subject of the proceedings, X and Y, have reached agreement about those orders which they collectively say are in their children’s best interests and proper. 

2. The Independent Children's Lawyer does not consent to the terms agreed to by the parents, for the reasons outlined by Ms McArdle, who appeared on her behalf.  Those reasons are, it seems to me, understandable given the circumstances and the evidence before the Court. 

3. In particular, Ms McArdle submitted that the Court would be concerned, speaking broadly, that the orders proposed by the parents differentiate in the manner in which they do, between the time each of the children will spend with their father.  A secondary issue of particular concern to the Independent Children's Lawyer, again understandably, was that Y’s time - and thus, her opportunity to continue to develop her relationship with her father and obtain the benefit from having a meaningful relationship with him - would be in some way dependent on X’s continued attendance at time with the father, given the manner in which order 5 of the proposed orders links the children’s time with the father together. 

4. Whilst in another case that submission may have persuaded me that the orders are not appropriate and not in the children’s best interests, in this particular case, given the following:  the difficulties for each of these parents, following upon the allegations made by Z against the father; the circumstances in which they were made;  the context within which they were made;  those matters which relate to Z’s mental health functioning itself (as can be found in Exhibit 1 - an extensive bundle of documents prepared and tendered by the Independent Children's Lawyer and received into evidence this morning); Y’s own functioning; and the issues with which she must deal (as outlined in particular by the evidence of Ms B, who has prepared an affidavit following an assessment of Y’s functioning), all combine to persuade me that, in this particular case, the orders that these parents have been able to agree are orders which are in the children’s best interests (both collectively and individually) and also proper in the circumstances.

5. I take into account and accept, in particular, the submissions made by Counsel who appear on behalf of the parents this morning.  I intend to order that a transcript of those submissions is obtained and placed with the file so that, should there be any need for this particular matter to be revisited in any way, any judicial officer called upon to undertake such revision will know, completely, the basis upon which both parents sought that the Court be persuaded that the orders, in terms agreed between them, are in their children’s best interests and proper.

6. I accept the submissions made by all Counsel, on behalf of both parents and the Independent Children's Lawyer, about the conclusions that the Court would not have been able to reach on the evidence vis-à-vis the disclosures made by Z about her father’s alleged conduct toward her in the circumstances of the evidence before me - particularly much of the evidence contained in Exhibit 1. 

7. For these very short reasons, then, and noting the Independent Children's Lawyer’s position as understandable, I am persuaded that the orders, as set out in the documents signed by the parents of these children, are orders which are in the children’s best interests and proper. 

8. Accordingly, I make orders in those terms, as amended during the course of discussion with Counsel this morning.  I initial that document, and place it with the papers. 

9. In light of the relatively recent decision of the Full Court, the name of which immediately escapes me, that dealt with the issue about orders discharging Independent Children's Lawyers and potential appeals arising (whilst noting the difficulties, in any event, associated with that, in terms of consent orders),  I will also make an order in terms which discharges the Independent Children's Lawyer but takes into account the reasons of the Full Court, relatively recently delivered.

10. The other thing included in standard orders that I often make are orders that restrain parties from utilising any document that they have received as a consequence of the proceedings (simply, a reflection of the implied undertaking, hopefully well-known to lawyers, but not, of course, necessarily known to people who are not legally qualified) and I am happy, also, to include that.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 January 2020.

Associate:

Date:  13 January 2020