Santos and Anderson

[2009] FamCA 1168

FAMILY COURT OF AUSTRALIA

SANTOS & ANDERSON [2009] FamCA 1168

FAMILY LAW - CHILDREN - With whom a child lives - Applicant mother and respondent father were both seeking orders for the children to live with them - One week before the final hearing the mother filed a Notice of Discontinuance discontinuing her Application for Final Orders and she has failed to appear at the final hearing - Orders made in accordance with the joint proposal of the father and the Independent Children’s Lawyer which provides for the children to live with the father and spend time with the mother

Family Law Act 1975 (Cth)

APPLICANT: Ms Santos

RESPONDENT: Mr Anderson

INDEPENDENT CHILDREN’S LAWYER: Ms Callander

FILE NUMBER: NCC 2762 of 2008

DATE DELIVERED: 16 November 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 16 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Mr Heazelwood

SOLICITOR FOR THE RESPONDENT: Ms Delany,
McMahon Broadhurst Glynn Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gardiner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Callander, Legal Aid NSW

Orders

WITH THE CONSENT OF THE RESPONDENT FATHER AND THE INDEPENDENT CHILDREN’S LAWYER IT IS ORDERED THAT

1. With the consent of the respondent father and the Independent Children’s Lawyer, it is ordered in accordance with the document entitled “Minute of Order Proposed by the Independent Children’s Lawyer” signed by, or on behalf of, the Independent Children’s Lawyer and the respondent father, dated 16 November 2009, which is marked Exhibit ICL1 and placed with the Court file:

   1.1All previous orders in relation to the children T born … August 1998 and D born … December 2000 be discharged.

   1.2The children live with the Father.

   1.3The parents have equal shared parental responsibility for the children.

   1.4In the event the Mother lives outside a 100 km distance from where the children live, the children are to spend time with the Mother:

   1.4.1From Friday 5pm until Sunday 3pm, or 3pm Monday in the event the Monday is a public holiday or pupil free day on the forth and eighth weekend in each school term with the Father or his delegate to deliver the children to the Mother or her delegate at the changeover location as agreed between the parties but failing agreement at the F Tourist Information Centre and the Mother to return the children to the Father at the same location.

   1.4.2In relation to time with the Mother pursuant to Order 1.4.1 above in the second term the first weekend the children spend with the Mother is to be on the weekend of Mother’s Day.

   1.4.3In relation to time with the Mother pursuant to Order 1.4.1 above the time with the Mother shall not fall on the weekend of Father’s Day.

   1.4.4For the first portion of all term school holidays from 12 noon or as agreed on the first Saturday until 12 noon on the last Wednesday.

   1.4.5For the first portion of the Christmas school holidays in even numbered years commencing at 1pm on the first Saturday that the children are not at school and finishing at 1pm on the second last Sunday of school holidays and for the second portion in odd numbered years commencing at 1pm on 2 January and finishing at 1pm on the last Sunday of the holiday period.

   1.4.6For a minimum of three hours on the children’s birthdays and the Mother’s birthday, such time to be spent within a 100 km distance of where the children are living with changeover and location to be agreed between the  parents.

   1.5In the event the Mother lives within a 100 km distance of where the children live the children are to spend time with the Mother as follows:

   1.5.1Each alternate weekend from after school Friday until before school Monday or Tuesday in the event that Monday is a public holiday or pupil free day commencing on the second weekend after each school holiday period.

   1.5.2For the first half of each in odd numbered years commencing after school on the last day of term until 10am on the midpoint day and for the second half in even numbered years commencing at 10am on the midpoint day and finishing on the second last day of the school holiday period.  Wife to collect at commencement of time and husband to collect from wife at conclusion of such time with the wife.

   1.5.3For the first half of the Christmas school holiday period in even numbered years commencing after school on the last day of term and finishing at 10am on the midpoint day and for the second half in odd numbered years commencing at 10am on the midpoint day and finishing at 10am on the second last day of the school holiday period.  Wife to collect at commencement of time and husband to collect from wife at conclusion of such time with the wife.

   1.5.4For additional weekends beyond those referred to in 1.5.1 above, by agreement.

   1.6If in any six month period commencing on 1 January and 1 July in any given year the Mother does not physically spend time with both children then, subject to the Mother’s consent, that the Father will deliver the children to the Mother’s home in F or such other place as she may reside from time to time provided it is not more than 600 kms from Tamworth, on the first Saturday of the next school holidays at 5pm and collect them at 8am on the second Sunday thereafter.

   1.7That the children be at liberty to communicate with the mother by telephone and email and can telephone either parent at any reasonable time upon request.

   1.8If not otherwise specified and with the exception of Order 1.4.6 and 1.5 herein, changeover unless otherwise agreed shall be facilitated by the Father or his delegate delivering the children to the F Tourist Information Centre and the Mother returning the children to the same location.

   1.9Order 1.4 is dependent upon the mother notifying the father by text message or in writing no later than 48 hours before any day upon which the children are to travel for the purposes of spending time with the mother with the following information:-

   1.9.1That she will be in attendance at F for the purposes of collecting the children pursuant to and in accordance with these orders.

   1.9.2That she will be in a position to drive the children to F so that they are able to be collected by the father on the day and at the time they are required to return to live with him pursuant to these orders. 

   1.10If the mother:-

   1.10.1fails to send a text message or notice in writing confirming her  availability to collect and return the children as required by order  1.9; or

   1.10.2having done so, fails to attend at F for the purposes of collecting the children at the commencement of the time they are to spend with the mother, then the orders for the children to spend time with the mother shall be forthwith suspended and either party may have liberty to approach this court for the purposes of seeking further orders in relation to the time the children spend with the mother.

   1.11Neither parent criticise or speaks disrespectfully of the other or members of their family or friends, in the presence of the children nor permit any other person to do so. 

   1.12Neither the mother nor the father shall discuss any Court Proceedings involving the other in the presence of the children nor permit any other person to do so, however the father may explain the effect of these orders to the children. 

   1.13Both parents shall keep:-

   1.13.1Each other fully informed of all matters concerning the health of the children, including names of medical practitioners and health professionals who attend the children from time to time and shall authorise such person/s to provide each other with such information that may be sought by each other from time to time and both parties shall be hereby authorised to see such information. 

   1.13.2Keep each other fully informed of the children’s current schools and authorise the Principals of such schools to provide each other with such information concerning the children as may be requested by either party from time to time and both parties shall be hereby authorised to receive that information. 

   1.13.3Each parent shall contact the other parent as soon as practical should any of the following events occur whilst the children are in their care:-

   i)Either child becomes seriously ill;

   ii)Either child is hospitalised;

   iii)Either child is involved in an accident.

   1.14NOTWITHSTANDING ORDERS 1.4.4 & 1.4.5 the father may nominate a period when the children’s time with the mother is shortened for one holiday period in any year, so that the children spend additional time with the father.  Such nomination shall be in writing and shall be given at least 28 days before the holiday period to which it relates.

   1.14.1If such nomination is given for a period referred in order 1.4.4, such period of time with the mother shall conclude, not on the Wednesday, but on the preceding Saturday.

   1.14.2If the nomination relates to a period referred to in order 1.4.5 then such period  may specify that the children’s time with the mother shall conclude on the second last Sunday of the holiday period.

IT IS FURTHER ORDERED

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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.

2. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

3. All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.

4. Any and all outstanding applications are dismissed.

5. The Independent Children’s Lawyer shall file a typescript of Exhibit ICL1 within seven days.

NOTATIONS

A.With the consent of the respondent father and the Independent Children’s Lawyer, Notation A15 is made in accordance with the document entitled “Minute of Order Proposed by the Independent Children’s Lawyer” signed by, or on behalf of, the Independent Children’s Lawyer and the respondent father, dated 16 November 2009, which is marked Exhibit ICL1 and placed with the Court file:

A15. The Father and Mother both accommodate T’s and D’s academic, social and recreational commitments as they continue to develop and consider those commitments when making decisions that may effect her being able to continue those pursuits.

B.The Independent Children’s Lawyer and respondent father submit to the Court, pursuant to Rule 10.15A(2)(a), that no allegations of child sexual or other physical abuse or risk of abuse have been made in the proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Santos & Anderson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2762 of 2008

MS SANTOS

Applicant

And

MR ANDERSON 

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings concern parenting orders with respect to two children born to the relationship of the applicant mother, Ms Santos, and the respondent father, Anderson. 

2. The children are T, born in August 1998, and D, born in December 2000 (“the children”).  T is now aged 11 years and D will shortly attain 9 years.

3. The parties were in a relationship, but separated in or about May 2005.  On 27 September 2005 final parenting orders were made between the parties with respect to their children by the Tamworth Local Court.  The parties largely abided by those orders until about late 2008 when the mother indicated a wish to relocate to the State of Queensland with the children.  The father did not agree to the proposed relocation.

4. The applicant mother commenced these proceedings by filing an Application for Final Orders on 30 October 2008.  The father responded by filing a Response on 11 December 2008. 

5. On 9 November 2009, the applicant mother filed a Notice of Discontinuance indicating that she discontinued the Initiating Application previously filed by her in these proceedings on 30 October 2008.

6. The matter had previously come before the Court in August 2009 for the making of procedural orders and at that time the matter was listed for final hearing before the Court on Monday 16 November 2009.

7. The mother has failed to appear before the Court today.  That non-attendance is apparently deliberate, having regard to the filing of her Notice of Discontinuance a little over a week ago.

8. In the absence of the mother, the respondent father and the Independent Children’s Lawyer have requested the Court to proceed to a determination of these proceedings pursuant to Rule 16.07 of the Family Law Rules.  I have acceded to that joint request.

9. In light of the mother’s discontinuance of her Application, the only parenting proposal before the Court is that submitted by the respondent father in his Amended Response filed on 15 October 2009.  However, this morning, learned counsel for the respondent father tendered as Exhibit F1 an affidavit sworn by Ms Diane Delany, solicitor, annexing correspondence recently forwarded to the mother indicating the orders now sought by the father.  Those orders largely replicate the parenting regime pressed by him in recent times, but there are some changes.

10. Apart from the parenting orders proposed by the respondent father, the Independent Children’s Lawyer was ready to embark upon a hearing pressing a series of parenting orders that were not entirely dissimilar from those sought by the father.

11. Rule 16.07 permits the Court to proceed with a hearing in the voluntary absence of one party by permitting the party present to adduce evidence to establish an entitlement to the orders sought by that party. 

12. The respondent father indicated an intention to press for parenting orders set out in Exhibits F1 and F4.  In support of that position, the respondent father relied upon his affidavit filed on 30 October 2009, a document filed on the same date entitled “Certificate of Exhibits”, and also an affidavit of his present partner Mrs Anderson filed on 30 October 2009.

13. The Independent Children’s Lawyer sought a series of orders slightly at variance from those proposed by the respondent father, and in support of the raft of orders proposed, indicated an intention to rely upon the Memorandum of the Family Consultant dated 6 February 2009 and the Family Report authored by the Family Consultant dated 1 July 2009.

14. At the request of the Independent Children’s Lawyer and the respondent father, the matter was stood in the list to enable those parties to engage in negotiations.  I acceded to that request and those negotiations have resulted in the Independent Children’s Lawyer and the respondent father now jointly advocating a revised set of parenting orders.

15. Having regard to the evidence adduced by the respondent father and the Independent Children’s Lawyer, and in the absence of any evidence brought by the applicant mother, I regard the orders agreed between the Independent Children’s Lawyer and the respondent father as being in the best interests of the children.  Accordingly, I intend to make orders in accordance with that joint proposal.

16. I therefore make the following orders.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  16 November 2009