Sampson and Payne

[2012] FamCA 682

FAMILY COURT OF AUSTRALIA

SAMPSON & PAYNE [2012] FamCA 682

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – With whom a child communicates – Order that child live with the Intervener – Order that Intervener have sole parental responsibility for the child – Mother’s time with the child is conditional upon the child wishing to spend time with the mother – Father to spend time with the child as agreed or as ordered by the Court

Family Law Act 1975 (Cth)
APPLICANT:	Ms Sampson

RESPONDENT: Mr Payne

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

FILE NUMBER: HBC 243 of 2009

DATE DELIVERED: 30 July 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 30 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr FitzGerald

SOLICITOR FOR THE APPLICANT: FitzGerald & Brown

COUNSEL FOR THE RESPONDENT: Mr Hurd

SOLICITOR FOR THE RESPONDENT: Blissenden Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Mussared

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid Commission

Of Tasmania

Orders

1. Orders be made in accordance with the minute of consent order tendered to me, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

2. 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.

   IT IS DIRECTED

3. A transcript of my reasons be taken out and placed on the court file.

4. The legal practitioner for the intervenor provide to my associate today, in electronic form, a word version of the minute of consent order.

   IT IS NOTED

5. There were two interpreters present in court when my reasons where given and the orders made and both the mother and Mrs M where present and observed the translation of the orders and of the reasons.

   IT IS FURTHER ORDERED

6. Leave be given for the Secretary, Department of Health and Human Services to withdraw from these proceedings.

7. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

   IT IS FURTHER DIRECTED

8. The Independent Children’s Lawyer, within twenty eight (28) days of the date of this order, forward to the Secretary Department of Health and Human Services, the following documents:-

   (a)copy of this order;

   (b)copy of the reasons delivered today; and

   (c)copy of the family report dated 5 November 2010.

   IT IS FURTHER NOTED

9. This is not a notification but simply to keep the Department informed and to enable them to have a complete record.

   IT IS CERTIFIED

10. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Exhibit “1”

1. The parenting Order dated 1 December 2010 be discharged.

2. The First Named Intervener, Ms M have sole parental responsibility for the child N (“the child”) born … 2002. 

3. N live with the First Named Intervener, Ms M.

4. The Applicant Mother spend time with N as follows, AND ON THE CONDITION it is N’s wish to spend such time with the Applicant Mother:

   (a)commencing for two (2) visits on Saturday between 10:00 am and 11:00 am;

   (b)for two (2) visits on Saturday between 10:00 am and 12:00 pm;

   (c)every Saturday thereafter between 10:00 am and 2:00 pm, and during school holidays on a Wednesday between 10:00 and 2:00 pm;

   (d)on N’s birthday between 5:00 pm and 6:00 pm;

   (e)on Christmas Day from 10:00 am until 12:00 pm; and

   (f)any other time as agreed between the Applicant Mother and First Named Intervener.

5. For the purposes of the Applicant Mother’s time pursuant to paragraph 4 of this Order, changeover be as agreed between the Applicant Mother and the First Named Intervener, however failing agreement, changeover will occur at the McDonalds car park in B Town. 

6. The Applicant Mother forward to the First Named Intervener any letters, special occasion cards or gifts for N, and the First Named Intervener will make all reasonable endeavours to ensure any such items are received by N.

7. The Applicant Mother be restrained from bringing N into contact with the Respondent Father, Mr Payne when the Applicant Mother is spending time with N pursuant to paragraph 4 of this Order. 

8. The Respondent Father spend time with N as agreed or as ordered by a Court of competent jurisdiction. 

9. The First Named Intervener keep the Respondent Mother informed at all reasonable times in relation to N’s educational and medical developments occurring in N’s life. 

10. The First Named Intervener be entitled on two (2) occasions each year to travel with N for the purposes of a holiday for no more than fourteen (14) day on each holiday, and on the condition the First Named Intervener ensures the Applicant Mother be offered make up time lost with N as a consequence of such travel. 

NOTATION

A.N continue to undertake any counselling and/or treatment as recommended by her treating medical practitioners at the time. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sampson & Payne 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 HOBART

FILE NUMBER: HBC 243 of 2009

Ms Sampson

Applicant

And

Mr Payne

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These are proceedings in respect of the parenting arrangements for N (“the child”), aged 9 and who turns 10 later this year.  There are a number of parties to the proceedings.  The child’s mother, Ms Sampson (“the mother”).  The child’s father, Mr Payne (“the father”).  The child’s carer, Ms M, and the Secretary for the Department of Health and Human Services, and an Independent Children’s Lawyer. 

2. This matter was dealt with under the Court’s Magellan scheme and the Court has before it, evidence in the form of a family report and material from the Department of Health and Human Services.  I have read all of that material. 

3. The Family Report recommends that the parties settle the matter or the Court resolve the matter as set out in a minute of order initialled by me, dated today’s date and approved by all of the parties with the exception of the father.  The father has not participated in these proceedings for some time.  He was sent notices of the dates that the proceedings were to be heard and, when called, did not appear.

4. I am satisfied that he has chosen not to attend on this hearing. 

5. The child does not wish to see the father at the present time.  Although, the orders envisage that he will be able to do so with the consent of Ms M. 

6. I have had particular regard to the material contained in the Family Report, even though that Report is about 18 months old.  I do not intend to read onto the record the whole of that Report, as it serves no useful purpose. 

7. The mother, to her credit, has consented to these orders, and this Court acknowledges how hard that would have been for her and acknowledges that in doing so, she has adopted a child-focused approach.

8. Having regard to all of the relevant factors under the Family Law Act 1975 (Cth) and in the light of the evidence, the consent of the parties, the recommendation by the Independent Children’s Lawyer and the support of the Secretary of the Department of Child and Family Services, I intend to make these orders.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 30 July 2012.

Associate:     

Date:              30 July 2012