Sayers and Davenport

[2009] FamCA 1248

FAMILY COURT OF AUSTRALIA

SAYERS & DAVENPORT [2009] FamCA 1248

FAMILY LAW – CHILDREN – Consent orders

APPLICANT: Mr Sayers

RESPONDENT: Ms Davenport

INDEPENDENT CHILDREN’S LAWYER: Mark William Bucknall

FILE NUMBER: BRC 9251 of 2008

DATE DELIVERED: 20 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 19 & 20 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms P Kirkman-Scroope

SOLICITOR FOR THE APPLICANT: Delaney & Delaney

COUNSEL FOR THE RESPONDENT: Mr J Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Raniga Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr M Foley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Bucknall Family Lawyers

Orders

IT IS ORDERED

1. That orders be made in accordance with the minutes of draft orders sealed and attached hereto.

2. That the said minutes remain upon the Court file.

3. That pursuant to s65DA(2) and s62B, 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.

MINUTES OF ORDER

1. That the parties have equal shared parental responsibility for the children, M born … October 1996 and P born … February 2000.

2. That the said children live with the mother.

3. That the said children spend time with and communciate with the father at all times as may be agreed between the parties but failing agreement as follows:-

   (a)each alternative week from after school Thursday until before school Monday, save in the event that Monday is a pupil free day or public holiday when the children shall be delivered to school on the  Tuesday morning.

   (b)during Easter 2010 and each even numbered year thereafter from 5:00pm Easter Thursday until 5:00pm Easter Monday with the mother to have the children from 5:00pm Easter Monday until 5:00pm the Sunday following Easter Monday, and in alternative years thereafer.

   (c)in 2009 and in each odd numbered year therafter, the father shall spend time with the children from 10.30am Christmas Eve until 1.00pm Christmas Day and the mother shall spend time with the children from 1.00pm Christmas Day until 1.00pm boxing day and in 2010 and in each even numbered year thereafter the mother shall spend time with the children from 10.30am on Christmas Eve until 1.00pm Christmas Day and the father shall spend time with the children from 1.00pm Christmas Day until 1.00pm on Boxing Day.

   (d)the father is to spend time with the children for the second half of all the school holidays including Christmas holidays and the mother shall have the first half in 2009 and each odd numbered year thereafter and the father shall have the first half of all the school holidays and the mother shall have the second half in 2010 and in each even numbered year thereafter.

   (e)for the purpose of calculation for the June/July and September/October and Christmas holiday periods the holiday period is to start on the first Saturday after the conclusion of school and is to conclude at 5pm on the Sunday immediately before school starts.

   (f)for the Christmas holiday periods the changeover shall be in accordance with order 12 at the G Contact Centre.

4. On the children's birthdays:

   (i)if the children’s birthdays fall on a school day the parent who is not providing the daily care of the child that day shall spend time with the children from 5.00pm until 7.30pm with changeover to take place at the IGA at G;

   (ii)if the children’s birthdays fall on a non school day the parent who is not providing the daily care of the child that day shall spend time with the children for four hours from 3.30pm until 7.30pm.

5. That the father shall ensure the children telephone the mother on Wednesdays between 6:30pm and 7:00pm when the children are spending time with the father during school holidays.

6. That the father shall have telephone contact with the children each Wednesday evening between 6:30pm and 7:00 pm with the father to instigate such telephone call.

7. That the children shall be at liberty to call either parent at such times as they wish and the parties shall facilitate any such telephone calls.

8. That any telephone calls shall be made or received by the children in a quiet private area, and the parents shall not monitor (including by the use of a speaker phone) nor interfere with the making or receiving of such telephone calls by the children.

9. That should the father be on a call, during the time that he is to spend with the children he shall arrange supervision by an appropriate adult known to the children if he is called out.

10. That if, in accordance with these orders, the children are spending time with the father on Mother’s day, the father shall return the children to the mother at 9.00am on Mother’s day to the IGA at G.

11. That the father shall spend time on Father’s day with the children from 9.00 am to 5.00pm on Father’s day should the father not be spending time with the children and the mother shall deliver the children to the father at 9.00am on Father’s day at the IGA at G.

12. That unless otherwise agreed between the parties changeovers on non-school days and on non-special days will occur at the G Contact Centre and in the event the contact centre cannot be used changeovers shall occur at IGA at G.

13. That the father and mother shall respectively refrain from, and are hereby restrained from denigrating the other parent or any other person in the others household, in the presence of the children. The parties shall use their best endeavours to ensure that no other person denigrates the other parents or any other person in the other’s household in the presence of the children.

14. That the father and mother shall advise each other as soon as possible of any emergency involving the children, including the name of the treating Doctor and hospital and telephone number if known.

15. That the Father and Mother shall advise each other of specialist appointments including orthodontic appointments made for the children, within 48 hours of any such appointment being made, and either or both of the parents shall be at liberty to attend any such appointment.

16. That the Father and Mother shall advise each other of any changes to their residential address, postal address and telephone contact number within 24 hours of such a change.

17. That the Father and Mother shall advise each other of any proposed interstate travel involving the children and shall provide a written itinerary for the children (including all telephone contact numbers for the duration of any travel) to the other party no less than fourteen (14) days prior to any proposed interstate travel.

18. That the Father and Mother shall advise each other in writing of the schools, activities, medical practitioners or other professionals whom the children attend and shall advise within 48 hours of any change to those details.

19. That the Father and Mother are to be at liberty to contact all of the medical practitioners treating the children from time-to-time and these Orders authorise the children's medical practitioners to provide information and reports concerning the children to the parents.

20. That the Father and Mother are at liberty to attend the children's school and extra-curricular events and activities and to contact the children's school and teachers to ascertain how the children are progressing. These Orders authorise the children's school and relevant educational institutions to provide a copy of the children's reports, school notices, newsletters, school photographs and any other information concerning the children to the both parents.

21. That should the parties use a Contact Centre for the purpose of changeover the costs of the Contact Centre be borne equally by the parties.

22. That for the purposes of facilitating the telephone contact the father shall call the mother’s landline first and if the children are not home then the father is at liberty to contact the children on the mother’s mobile telephone number. 

23. That in the event that either party consults with or seeks treatment from any general practitioner or medical specialist other than the children’s regular general practitioner or specialist the parent taking the child to such medical practitioner is to take all steps to ensure that the records of such consultation and treatment are provided to Dr L in terms of the children’s normal general practitioner and to the regular treating specialist.

24. That Ms B or such other person as may be nominated by the Director of Court Counselling be appointed pursuant to s.65L of the Family Law Act to assist in the implementation of these orders and to provide such assistance as may be reasonably requested by the parties in relation to compliance and carrying out the orders for a period of 12 months from the date of this order.

25. That the parties attend with the children upon Ms B on Thursday, 26 November 2009 at 9.00am or at such other time as may be specified by Ms B for the purposes of Ms B assisting the parties to communicate the content of these orders to the children.

26. That the parties within 14 days from the date of order shall take all steps necessary to refer the children to the Child Youth and Mental Health Service for the purposes of the children being therapeutically counselled.

27. That the parties attend therapeutic counselling with Relationships Australia to gain assistance with effective co-parenting, the resolution of conflict and the promotion of effective communication.

28. That the mother shall take all necessary steps to ensure that the father is acknowledged and noted on the appropriate contact records of each of the children’s schools and shall provide a copy of the letter evidencing such request to the father and any confirmation received from the school within 14 days.

29. It is agreed that for the purposes of the father collecting M that he is at liberty to collect him at the Shopping Centre Bus Stop or at such other place as may be agreed between the parties in writing.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9251 of 2008

MR SAYERS

Applicant

And

MS DAVENPORT

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. Ladies and gentlemen, and in particular Mr Sayers and Ms Davenport, for better or for worse, the two of you have drawn me at the end of my Judicial career.  This is my second last case after 19 years on the Bench, and I suspect I have felt empowered to break a few rules because I am reaching the end of my career.  That is why I addressed you at the beginning of the trial in an unusual way, and to be consistent, I feel inclined to address each of you again, at this stage.  As I say, I have been doing this for 19 years, and I was doing it for many years before that as a barrister.

2. Particularly in the course of 19 years as a judge, you see a lot of bad stuff.  You see people in awful situations, struggling with the consequences of separations.  The reality is that such stressors can bring out the worst in people.  I need to be frank and say to you that, when I was reading the papers in this case in preparation for the trial, I was sharing the despair that was identified by Ms B.  I could see starkly in black and white what the two of you had been through for the last 10 years and, more importantly, what your two children had endured in the last 10 years.

3. My experience has been that children who endure extended acrimony, conflict and disharmony between their parents are most often those who we find struggling in their own lives later on, and in their own relationships.  Sometimes that is mere speculation.  Sadly, in this case, there are signs already that one of your boys is, as has been said, on the precipice of some very, very difficult places to negotiate as a teenager.

4. Accordingly, I approached this case very pessimistically.  However, I do need to say that what I have observed over the last two days, given the deep hole you are both climbing out of, is very, very encouraging.  Now, I see this five-page document that was handed to me this afternoon which incorporates in it so many concessions on both sides and so many constructive features to help you and your children with what is ahead.  Whilst it is easy to get carried away with these things, it represents the best prospect for quite a remarkable turnaround.

5. Now, the other reality is that the future is not going to necessarily be easy.  The orders are a very, very small part of this exercise.  At the end of the day, as Ms B said in her report, it is up to the two of you.  You cannot have, and you do not want to have, the Family Court looking over your shoulders for the rest of your lives. Your boys will not have a good outcome if the only way this is negotiated is with the Family Court coming in every six months. 

6. Underlying all the bad things that have happened in the past, there was this picture that was emerging that Ms B picked up.  The frustrating thing is that, whilst the children have had to endure so much because of the conflict, individually they had two capable, committed parents who had so much to offer.  The tragedy for the family was that, as a collective, it was not working for them.  I believe that you are both genuinely committed to doing better for your sons and that you both realise that there are no more tomorrows.

7. There are going to be hiccups and there are going to be differences.  They are not going to disappear overnight.  But there is no opportunity to fail again, because at least one of your sons is going to suffer greatly if his parents fail him again.  And I believe you know that. 

8. I say to Mr Sayers that you have made some bad mistakes in the past, you have not handled the stress well in the past, but you have shown me today and over the last two days that you are prepared to put the children first, and you have made many proper concessions.  You started this case seeking residence.  Then you moved to equal time, and as late as today, when you heard what Ms B says, you are prepared to compromise further on that.  I appreciate how much emotional investment you had in wanting to have your children half the time.  I hope the mother appreciates the concessions you have made. 

9. Similarly, I hope that you appreciate the concessions that Ms Davenport has made, because although the outcome is a long way short of what you originally hoped for in this exercise, I also have concluded that the mother’s concerns are genuine, whether they are entirely justified and entirely reasonable.  After 10 years of conflict, not only children are scarred, but of course adults are scarred.  I think what Mr Sayers is telling me is: “What it’s done to me is, sometimes I become angry.  I become so frustrated, and I haven’t handled it well.”  What the mother is telling me is that, “The toll that the 10 years has taken on me is, I can no longer communicate, I can no longer trust, and I’m anxious when they’re away.”

10. Now, Mr Sayers would say that there is no need for her to be as concerned.  But I will accept that you are both genuine, and I hope that you can acknowledge that this has only come about because Ms Davenport has also been prepared to move a long way. 

11. I commend each of the parties, because the steps they have taken, given the history that they have endured, are very, very big steps indeed. 

12. I encourage the parties to use what appeared to me to be the goodwill and graces of Ms C, who impressed me as being a person who saw the benefits for her grandchildren of doing better, and she too was very anxious to put the past behind her, and no doubt she has been caught up in it as well.  I see that the mother in these proceedings relies to a significant extent upon the support of her mother, and I am sure the boys have benefited from the support of the grandmother. 

13. I am hoping that the three of you together can make this work.  Again, there is no expectation that everyone is going to instantly like one another.  I think it is an excellent idea that the parties are going to seek help, because this is going to be hard to fix.  You are going to need a good professional person to help you in that process. 

14. Young children are vulnerable to these sorts of situations and M is showing signs of some consequences of it.  The encouraging thing is that young children, in particular, are also very resilient.  If they are given a way out by their parents, if they are given a new world to exist in, to grow up in, the damage may not be irretrievable.  They may still reach their full potential and have a happy, contented life where they can pursue relationships in a much better frame of mind.  I commend you, and I encourage you to make what you have put in place work.

15. In terms of dealing with the remaining issue, I think it will come as no surprise to Mr Sayers that I have decided that I should accept the recommendation of Ms B.  I think she has displayed a high level of professionalism and insight in this matter.  She has had the benefit of speaking to the boys and she is in a good position to gauge what can be managed.

16. I accept the submissions that what is being proposed is beyond the stated preferences of the boys, but I also am inclined to the view identified by Ms B, that their responses were their way of trying to manage their parents’ conflict.  I am hopeful and optimistic that, given that these arrangements that I propose to make have the support of the mother, the boys are likely to manage the increased time and that, if the parties remain true to their word and seek the appropriate help, indeed, they will greatly benefit from the time with their father.

17. I am satisfied, as a question of fact, that the proposed time with the father represents substantial and significant time because the children will see their father during the week.  He will have direct and indirect involvement, or the opportunity of involvement, with their schooling on Thursday, Friday, and Mondays.  He will, of course, in addition to the alternate block time, have half school holidays.  I am satisfied that the time meets the criteria. 

18. In any event, I am satisfied that those orders are in the best interests of the children and that they find an appropriate balance between extending their relationship with their father, with all the wonderful things that he has to offer them and balancing the mother’s reservations and the boys’ reservations as they existed.  I hope the boys will be relieved of those reservations once they learn that their parents have largely reached agreement and had the orders explained to them. 

19. I wish to incorporate into my reasons to explain why I have delivered an abridged judgment in this form the remarks I made at the commencement of the trial.  They explain both some of the background of the matter and the reasons I have approached the case in the way I have.

20. Otherwise, I propose to make orders in terms of the proposed orders.  The draft order was drafted on the assumption of acceptance of the recommendations of Ms B, so I make orders in those terms.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan.

Associate: 

Date: