Roberts and Roberts
[2008] FMCAfam 812
•29 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROBERTS & ROBERTS | [2008] FMCAfam 812 |
| FAMILY LAW – Children’s matters – equal shared parental responsibility – substantial and significant time with mother when completed drug and alcohol rehabilitation. |
| Family Law Act 1975 (Cth), s.61DA |
| Applicant: | MR ROBERTS |
| Respondent: | MS ROBERTS |
| File Number: | MLC 13759 of 2007 |
| Judgment of: | Turner FM |
| Hearing dates: | 28 & 29 July 2008 |
| Date of Last Submission: | 29 July 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 29 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Skerlj |
| Solicitors for the Applicant: | Harwood Andrews |
| The Respondent: | Appearing on her own behalf |
| Counsel for the Independent Children’s Lawyer: | Mr Crozier–Durham |
| Solicitors for the Independent Children’s Lawyer: | Argicola Wunderlich & Associates |
ORDERS
That the orders of the Family Court of Australia made on 5 April 2006 be discharged.
That the father and mother have equal shared parental responsibility for the children [X] born [in] 1995 and [Y] born [in] 1997.
That [X] and [Y] live with the father.
That the children do spend substantial and significant time with their mother, to be achieved through the orders that follow this order.
That the mother spend time and communicate with [X] and [Y] as is agreed between the father and the mother, such time to be supervised by the father with such other person as is approved by the father.
That the father authorise any school attended by [X] and/or [Y] to provide to the mother:
(a)copies of all school reports of the children;
(b)copies of school notices, school photographs, orders and newsletters.
Subject to the discretion of the schools the mother be permitted to attend parent–teacher interviews and functions usually attended by parents and to communicate with all teachers at the school at times convenient to the schools.
The appointment of the Independent Children's lawyer be discharged.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
The face–to–face time with the children will not commence until the mother provides written evidence to the father that she is complying with all treatment by psychiatric and medical professionals as recommended and has successfully completed alcohol and drug rehabilitation.
Pursuant to 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 adjust to and comply with an order are set out in Attachment A hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Roberts & Roberts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 13759 of 2007
| MR ROBERTS |
Applicant
And
| MS ROBERTS |
Respondent
REASONS FOR JUDGMENT
The Court finds no reason to rebut the presumption of equal shared parental responsibility in s.61DA of the Family Law Act 1975 (the Act).
The Court has had regard to factors said to come under s.61DA(4) of that Act, being the mother’s alcohol abuse, her ongoing depression and incidents of self–harm.
In particular, the Court notes the content of paragraph 15 of the report of Barbara Fraser attached to her affidavit sworn on 13 July 2008 as follows:
“As already noted, Ms Roberts withdrew from the updated report process. As ready noted too, it appears that Ms Roberts’ mental and physical health has declined, and she is regarded by professionals as being at risk of self-harm with episodic crises. The extent of treatment that Ms Roberts might be receiving currently is unclear, but it would be crucial that she is participating in and complying with appropriate psychiatric treatment, should the children spend any time or even communicate with her.”
The Court makes an order in terms of order 1 of the minutes of orders proposed by the Independent Children’s Lawyer as follows:
“That the father and the mother have equal shared parental responsibility for the children, [X], born [in] 1995, and [Y], born [in] 1997.”
It is not contested that the children live with the father. The Court orders that [X] and [Y] live with the father.
Having ordered equal shared parental responsibility, the Court must consider whether it is appropriate for the children to spend equal time with both parents.
The Court decides it is not appropriate for the children to spend equal time with both parents. The Court has had regard to the factors mentioned above, in reaching that decision.
The Court must then consider when the children should spend substantial and significant time with their mother. The Court orders that the children spend substantial and significant time with their mother, to be achieved through the orders that follow this order.
The Court orders that the mother spend time and communicate with [X] and [Y] as is agreed between the father and the mother, such time to be supervised by the father with such other person as is approved by the father.
The Court orders that the father authorise any school attended by [X] and/or [Y] to provide to the mother:
a)copies of all school reports of the children;
b)copies of school notices, school photographs, orders and newsletters.
Subject to the discretion of the schools the mother be permitted to attend parent–teacher interviews and functions usually attended by parents and to communicate with all teachers at the school at times convenient to the schools.
The Court orders that the appointment of the Independent Children’s Lawyer be discharged.
All extant applications be otherwise dismissed.
It is noted by the Court that face–to–face time with the children will not commence until the mother provides written evidence to the father that she is complying with all treatment by psychiatric and medical professionals as may be recommended and has successfully completed alcohol and drug rehabilitation.
The Court orders that the Orders of the Family Court of Australia made on 5 April 2006 be discharged.
The Court considers the above orders to be in the best interests of the children, [X] and [Y].
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Kirra Vickerman
Date: 29 July 2008
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