Sakhagi and Brawn (No 2)

[2017] FamCA 188

FAMILY COURT OF AUSTRALIA

SAKHAGI & BRAWN (NO 2)

[2017] FamCA 188

FAMILY LAW – CHILDREN – final orders – ex tempore – with whom child shall live –  where parties agree to parenting arrangement by consent – consideration of whether the order is in the best interest of the child

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

APPLICANT:

Mr Sakhagi

RESPONDENT:	Ms Brawn
INDEPENDENT CHILDREN’S LAWYER:	Lyrene Wiid Lawyer & Migration Agent

FILE NUMBER: BRC 1373 of 2011

DATE DELIVERED: 20 March 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Berman J

HEARING DATE: 20 March 2017

REPRESENTATION

THE APPLICANT:	Litigant in person
COUNSEL FOR THE RESPONDENT:	Ms Sweetapple

SOLICITOR FOR THE RESPONDENT: Briese Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid Lawyer & Migration Agent

Orders

IT IS ORDERED THAT:

1. I make Orders in terms of the Minute of Order this day signed by me.

1. The Minute of Order shall be Exhibit 1 in the proceedings.

1. The Mother’s solicitor to draft and engross the Orders within seven (7) days of           

   this date.

1. Judgment in respect of the application relating to the child’s (B born on … 2008) surname is reserved.

2. 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 ORDERED BY CONSENT THAT:

DISCHARGE OF ORDERS

1. That all previous Orders and Parenting Plans be discharged.

PARENTAL RESPONSIBILITY

1. That except as otherwise stated, the Father and Mother have equal shared parental responsibility for the major long term issues of the child, B born … 2008.  

2. That the parents are to consult each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)       They shall inform the other parent about the decision to be made;

   (b)       They shall consult with each other on terms that they agree;

   (c)       They shall make a genuine effort to come to a joint decision.

3. That notwithstanding the provision of Order 7 above:

   (a)The Mother shall be responsible for the daily care, welfare and     development of the child when she is living with or spending time with          her;

   (b)The Father shall be responsible for the daily care, welfare and      development of the child when she is living with or spending time with          him.

CIVILITY IN COMMUNICATIONS

1. That during the time the child is with either parent, that parent shall:

   (a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

   (b)Speak of the other parent respectfully;

   (c)Encourage and not undermine the child’s relationship with the other       parent;

   (d)Not denigrate or insult the other parent in the presence or hearing of the            child and use their best endeavours to ensure that others do not denigrate         or insult the other parent in the hearing or presence of the child.

ORDINARY TIME WITH PARENTS

1. That the child shall live with the Mother and spend time with the Father as agreed between the parties but failing agreement as follows:

   (a)     From after school Friday until before school Monday every second   weekend during school terms; and

   (b)     Each Thursday from after school until 6:30pm during school terms.

HOLIDAY TIME WITH PARENTS

1. That the child shall spend time with the Father and Mother for half of the Autumn, Winter and Spring school holidays with each parent with the first half to be spent with the parent who is scheduled to have the child on the first weekend of the school holiday period.

2. For the purpose of these Orders, the school holiday time shall commence:

   (i)When a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.30pm on the day calculated to be half of the holidays;

   (ii)When a parent’s time falls in the second half of the holidays from 5.30pm on the day calculated to represent half of the holidays when contact shall end at 9.00am on the day the school term commences; and

   (iii)School holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00am on the day the child returned to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional night.

3. On Christmas Day:

   (a)The child will spend alternate Christmases with each parent, from 4:30pm Christmas Eve until 4:30pm Boxing Day, commencing 2017 with the Father;

   (b)In even numbered years, the Mother will travel to New South Wales with the child for a period of two (2) weeks including the Christmas period in 14(a) above and in odd-numbered years, the Mother will travel to New South Wales with the child for a period of two (2) weeks at the conclusion of the Father’s time with the child after the Christmas period in 14(a) above;

   (c)The remainder of the Summer school holidays will be spent in blocks of seven (7) days to coincide with regularly scheduled weekends and accommodate the conditions set out in Order 14(b).

SPECIAL OCCASION TIME WITH PARENTS

1. In the event that either parent is celebrating a special occasion, such as a wedding, the parent will provide the other parent with fourteen (14) days’ written notice of that event and the other parent cannot unreasonably refuse such time.

COMMUNICATION WITH PARENTS

1. That the child shall communicate with the parents on the telephone at such times as the child reasonably requests and in relation to such communication each parent shall:

   (a)Arrange for the child to telephone the other parent; and

   (b)Ensure that the child has privacy during the conversation and not interfere with the telephone call.

2. That the parents be at liberty to contact the child at all reasonable times and in relation to such communication each parent shall:

   (a)   Ensure that the child is available to receive the telephone call;

   (b)Arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent;

   (c)Ensure that the child have privacy during the conversation and not interfere with the telephone call.

CHANGEOVER

1. That except as otherwise ordered, the Father and Mother shall collect the child from and return them to school during times that they have the child.

2. That if the child is not attending school then changeovers shall occur at such other place as the Father and Mother agree, but failing agreement:

   (a)   During school term, at Coles, H Shopping Centre; and

   (b)  During school holidays, at the BP Service Station in I Town.

3. That each parent shall deliver and return the child’s clothing, school supplies and belongings and the child’s clothing shall be returned in a clean condition.

EXCHANGE OF INFORMATION AND AUTHORITIES

1. That the Mother and Father shall:

   (a)Keep each other informed at all times of their residential address and contact telephone number and inform the other party in writing within 24 hours of any change;

   (b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;

   (c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child.  This Order authorises any treating medical practitioner to release the child’s medical information to the other parent;

   (d)Ensure that they each inform the other of any planned medical appointments for the child;

   (e)Ensure that they offer the other parent the opportunity to attend every medical appointment and discuss any proposed treatment with the doctor or other health professional;

   (f)Ensure that the parents abide by the recommendation of the doctor / health professional after that discussion;

   (g)Authorise, by this Order, the schools or day care centres attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost);

   (h)Communicate about issues concerning the long term, care, welfare and development of the child and any proposed changes or swaps to the contact arrangements.

GENERAL ISSUES

General

1. That each parent must advise the other of any medication the child is to take while the child is in the other’s care (including the dosage) and the parents shall (when the child is in their care):

   (a)Administer any prescribed medication in accordance with the prescribing doctor’s instructions; and

   (b)Use their best endeavours to ensure that the child is able to attend any speech pathology appointments in accordance with the recommendations of medical professionals.

2. The parents shall not (when the child is in their care):

   (a)Consume any non-prescription drug (including but not limited to any drugs of abuse: Amphetamine type substances; Barbituates; Benzodiazepines; Cannabis metabolites; Cocaine metabolites; Opiates);

   (b)Be under the influence of alcohol in excess of the legal driving limit for the period of 24 hours prior to or during any time they spend with the child.

3. That the Mother and Father provide authority for the child's treating health professionals and school to communicate regarding the child.

4. That the Mother and Father shall be at liberty to attend a joint meeting with the school about the child, in particular but not limited to any behavioural concerns held by the school.

5. That the Mother and Father are at liberty to attend school and health appointments for the child, as required or recommended by the relevant authority.

DISPUTE RESOLUTION

1. In the event of any dispute as to the interpretation or implementation of this Order (including any claim by a party that it should be varied) the parties shall first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine effort to resolve the dispute. Failing agreement as to that appointment, the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.

2. That 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 child, each party is to take the steps referred to in the preceding Order.

IT IS NOTED:

A.In relation to the Christmas school holiday period the parents have the capacity to extend the time spent in accordance with the child’s maturity and ability to cope.

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 Sakhagi & Brawn (No 2) 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 1373 of 2011

Mr Sakhagi

Applicant

And

Ms Brawn

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicant in the proceedings is Mr Sakhagi (“the father”).  The respondent in the proceedings is Ms Brawn (“the mother”).  The subject child is B (“the child”). 

2. The proceedings commenced initially in this Court by way of Initiating Application in February of 2011 and, of more recent date, by Initiating Application filed 27 August 2014.  The focus of the parties has been in respect of the ongoing parenting arrangements in respect of the child. 

3. There had been discussions between the parties, with the assistance of the Independent Children’s Lawyer (“ICL”), and it was understood at the time that this matter came on before me today, that whilst I did not know what the outcome of those decisions was in terms of the detail, I had been advised that it was likely the substantive parenting issues would be the subject of resolution and therefore orders by consent would be made but that there were three matters, three remaining issues. 

4. The first and most significant matter is relating to the child’s surname.  The second is relating to the administration of medication to the child, and the third is relating to matters affecting the child’s schooling. 

5. What has happened is that the parties, with the assistance of the legal advisers where they are involved, have been able to reach comprehensive agreement.  There were still some issues outstanding today, but following the matter being stood down and an opportunity given to the father to consider his position, to consider a draft minute of order that had been forwarded to me as representing what was likely to be agreed between the parties, the father’s clear position is that he is now prepared to consent to a document which bears his signature and that of the mother, together with the ICL. 

6. There remained outstanding, however, one matter, which was the dispute between the parties as to the child’s surname, and I have indicated to the parties, now that I have heard evidence from each of them and the helpful submissions of counsel for the mother, the ICL, and the father, that I did not think it was appropriate for me to deliver ex tempore reasons.  The matter needs to be the subject of more mature reflection. 

7. Because there will then be a delay between today and the making, or the resolution of the final remaining issue, namely, the dispute as to the child’s surname, the orders that the parties have agreed to should be made.  I have before me a minute of order, and that following further discussions today, that document has been supplemented by a single page, which provides further orders to be added into paragraph 16 of the draft minute.  Upon making those orders, those documents together will comprise Exhibit 1 in the proceedings. 

8. Notwithstanding that it is a consent order, it is, I think, clear that it is not a matter for me to simply accede to the agreement of the parties.  That is, a consent order and the making of orders by consent should not be a mere formality. 

9. There is a process, but importantly, the obligation of the Court is to make orders that are in all the circumstances in the best interests of the child or children, and that then requires that I bring some consideration to bear in respect of the orders, what the orders are likely to achieve and, to the best that I can, notwithstanding that it is a consent order, to glean whether, in the circumstances of this case, if those orders are made, the child will benefit. 

10. Having said that it is not a matter of a rubber stamp, Dawson J in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 said at 124:

    The fact that an order is sought by consent does not relieve a court, or a Registrar, from compliance with the requirements of the section, but it may render compliance much less demanding.  Provided that a court, or a Registrar is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met.

    In this case, that can easily be said in respect of the mother and certainly in respect of the ICL, but cannot necessarily be so easily said in respect of the father, who appears as self-represented litigant. 

11. Again, though, opportunities have been given to the father to reflect upon the orders, and the matter was stood down today specifically to enable the father to avail himself, if he wished, of assistance and advice from the duty solicitor within the registry of this Court.  I am also aware, from the father and the evidence that he gave, that whilst this document may be the first time he saw it today, nonetheless the matters contained in the document have been the subject of consideration by him for now some little time. 

12. The father indicated in evidence and in submissions that he had consented to a resolution to the majority of the parenting issues, but he had resiled from that firm position because of certain events that had occurred over the last few days or weeks.  The matter, however, came back on track, with the matter being stood down today and further agreement being reached in terms of the amendments that I have indicated, which form paragraph 16(d), (e) and (f) of Exhibit 1. 

13. Having come to that subsequent agreement, the father has made it clear to the Court that he understands the orders, that he understands that if the orders are made, it represents the complete resolution to the proceedings in respect of the parenting arrangements the child, and he asks me, over and above the fact that the documents bear his consent and those of the mother, to make orders in terms of the minutes of order, understanding that it resolves the matters.

14. I have had the advantage of seeing the father in Court across the morning.  I have had the advantage of hearing the father in his submissions and of seeing him cross-examine the mother in the proceedings and I am satisfied that his state of knowledge in respect of the proceedings is good and that he has given the matter careful and mature reflection.  It is for those reasons, that I make the orders as requested.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 20 March 2017.

Associate: 

Date:  29 March 2017