Seaward and MacDuff
[2012] FamCA 128
•2 February 2012
FAMILY COURT OF AUSTRALIA
| SEAWARD & MACDUFF | [2012] FamCA 128 |
| FAMILY LAW - CHILDREN - With whom a child spends time – Interim Orders – Whether father’s time with the children should be reinstated |
| APPLICANT: | Mr Seaward |
| RESPONDENT: | Ms MacDuff |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Samuel |
| FILE NUMBER: | SYC | 2177 | of | 2011 |
| DATE DELIVERED: | 2 February 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 2 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Graves |
| SOLICITOR FOR THE APPLICANT: | David H Cohen & Co |
| SOLICITOR FOR THE RESPONDENT: | Abrams Turner Whelan Family Lawyers |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
I make orders in accordance with the document entitled Minute of Orders Sought by the Independent Children’s Lawyer, marked with the letter X and placed by me with the Court papers and set out hereunder:
MINUTE OF ORDER SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER
1. That all previous parenting orders in respect to the children B born … .12.98, J born … .02.04 and Z born … .09.05 be discharged.
2. That pending further order the said children live with the mother.
3. That pending further order the children J and Z spend supervised time with the father as follows:-
a. Such time to be supervised by P Contact Agency.
b. For a period of three (3) hours alternating as follows:-
i.On a school day to be agreed to by the parties from the conclusion of school until 6.15pm at a venue close to the children’s residence at [Town A] and in the absence of agreement the father can nominate a day other than Friday or on which there is no sports training.
ii.Each other week on Saturday at times to be agreed at a venue in Sydney.
c. The parties to forthwith do all things necessary and complete all documents required to complete any intake procedures required by [P Contact Agency] with a view to the father’s time with the children commencing as soon as is reasonably practicable.
d. The father’s time with the children to take place at a venue deemed appropriate by [P Contact Agency] taking into account any risk assessment conducted by that organisation.
e. All costs of [P Contact Agency] to be paid by the father.
f. Telephone communications twice per week and in the absence of agreement between the parties each Wednesday and Sunday between 6.00pm and 7.00pm and further the mother facilitate the children communicating by telephone with the father and she may monitor, but not participate in such communication.
g. For the purpose of implementing paragraph 3(b)(i) herein the children are to be collected from their school and returned to the mother outside their school at 6.15pm.
h. For the purpose of implementing paragraph 3(b)(ii) herein the children shall be delivered to and collected from a venue nominated by [P Contact Agency] by the mother or her nominee.
4. That the child [B] spend time and communicate with the father in accordance with her wishes NOTING THAT [B] may spend time and communicate with the father as per the terms of paragraph 3 of the orders contained herein if she chooses to do so.
5. That the father’s time with the children pursuant to paragraphs 3 and 4 of the Orders contained herein be subject to the following conditions:-
a. That the father not denigrate the mother or permit any third party to do so within the presence or hearing of the children.
b. That the father not physically discipline the children or permit any third party to do so.
c. That the father not discuss the proceedings or any issues arising out of the proceedings with the children or permit any third party to do so.
d. That the father not show the children copies of any court documents filed or prepared in respect to these proceedings or in any related proceedings.
e. That the father not attend on the children’s place of residence or school except for the purpose of compliance with Order 3.
f. That the father not communicate with any of the children by any means other than as provided for in the orders contained herein and this includes any electronic means such as SMS, text or email.
g. That the father comply with the terms of Order 8 contained herein.
h. That the father not contact by any means the mother’s employer or place of employment.
6. In the event that the father breach’s any of the conditions contained in paragraphs 5 or 8 of the orders contained herein the father’s time with the children to be suspended.
7. That the mother be restrained from the following:-
a. Denigrating the father or permitting any third party to do so within the presence or hearing of the children.
b. Physically disciplining the children or permitting any third party to do so.
c. Discussing the proceedings or any issues arising out of the proceedings with the children or permitting any third party to do so.
d. That the mother not show the children copies of any court documents filed or prepared in respect to these proceedings or in any related proceedings.
e. Leaving the children or any of them in the care of her husband [Mr MacDuff] without herself or another responsible adult being present.
8. That both parties be restrained from having any of the children interviewed by the NSW Police, JIRT, the Department of Family and Community Services, any psychologist or psychiatrist, any counsellor or any other health professional or medical practitioner except as follows:-
a. Order of the court.
b. Attendance on a General Practitioner for normal and routine medical appointments and examinations.
c. In the case of a medical emergency on a Hospital or relevant medical practitioner or health professional.
9. The parties to only communicate by way of mobile telephone or text message in the case of an emergency and that both parties otherwise be restrained from communicating with the other by any other means.
10. That the mother make each of the children available to the Independent Children’s Lawyer forthwith for the purpose of explaining the orders contained herein.
11. Pursuant to Section 68Q, the extent to which this Order is inconsistent with an existing family violence order, the family violence order is invalid.
12. That leave be granted to the parties and to the Independent Children’s lawyer to re-list the proceedings on seven (7) days notice in respect to the implementation of these orders and or any issue relating to the suspension of the father’s time with the children pursuant to the Orders contained herein.
13. Pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
I note that paragraphs 1, 2, 3(a), (c), (d), (e), and (g), 5, 6, 7 (a),(b),(c) and (d), 8, 9, 10, 11, 12 and 13 are made by consent.
I note that paragraphs 3(b), 3(f), 4, 5(e) and 7(e) are orders made pursuant to my determination.
The matter is otherwise adjourned for hearing before the Honourable Justice Ryan.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Seaward & MacDuff has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2177 of 2011
| Mr Seaward |
Applicant
And
| Ms MacDuff |
Respondent
REASONS FOR JUDGMENT
The proceedings before the Court concern three children, B, born in December 1998, J, born in February 2004, and Z, born in September 2005. The matter comes before me to determine an interim application by the father that his time with the children be reinstated on an unsupervised basis and that application is opposed by the mother. The matter is listed for hearing in May before Ryan J and orders have been made today by her Honour for the preparation of an expert’s report. Interviews with Dr R will be taking place in March.
It is common ground between the parties that the father has not had face to face time with the children since August of 2011 and that he has telephone contact with J and Z but not at the present time with B. After quite lengthy discussions and with the assistance of the independent children’s lawyer it was agreed between the parties and the independent children’s lawyer that it would be appropriate for the father’s time with the children to be reinstated and supervised by the agency, P Contact Agency, at the father’s expense for a period of three hours each week.
In the course of the discussions between counsel, the solicitors for the independent children’s lawyer, and the wife, and myself my reasoning was aired. The discussions were lengthy. The extent to which reasons are required to be given is more or less determined by the circumstances of the dispute between the parties. The purpose of these reasons is to indicate to the parties why the decision has been made. The reasons will not be lengthy. The framework of the supervised time that the children will spend with the father was largely agreed. There were disputes, however, as to five issues which may be described as machinery.
The first area of dispute was whether B, who is now 13, should be included in the supervised time. It was the father’s case that B is placed under considerable pressure from the mother not to attend and that if no order is made B is unlikely to come. It was the mother’s case that she has and will do everything she can to encourage B’s participation. The independent children’s lawyer submitted that in his last interview with B which took place in December she was clear that she wished to make the decision herself about when she would like to spend time with her father and that at the present time that is not her wish.
The independent children's lawyer expressed concern that if B is required by the court to participate in the visits with her father against her will the effect may be counterproductive and may lead to B refusing to see him at all. I agree with that submission and I propose to make the order that B’s participation in the supervised visits will be at her wishes. Nevertheless, it will be a matter of significance in the final hearing of the matter whether or not B has attended those visits.
The next matter which was in dispute was the mother’s application that the orders of Sexton FM which required supervision of the children’s time with the mother’s new husband should be vacated. That application was opposed by the father. That order was made in circumstances where it was alleged by the father that the children had complained of the behaviour of Mr MacDuff towards them. It was submitted on behalf of the mother that there was no evidence other than the father’s evidence of what the children had said to him to support that order. The independent children's lawyer submitted that the issue of the treatment of the children by Mr MacDuff was a serious factual dispute to be tested in the final hearing of the matter and that those orders should remain for the next three months until the trial. I agree with the submission of the independent children’s lawyer and I do not propose to discharge that order.
The next matter in dispute was the issue of telephone conversations between the children and the father. The father proposed that the requirement that the conversations be monitored should be lifted. That was opposed by the mother. I propose to leave the requirement for monitoring in place for the same reasons that I made clear to the parties that I intended to order that the father’s time with the children be supervised.
The next issue in dispute between the parties was the location of the supervised time. The father proposed that the visits take place on one week on the central coast where the children live and on the other week in Sydney. The mother wished to have all of the time exercised on the central coast. The children have lived in Sydney and are familiar with places that the father could take them in Sydney and he has in mind a range of activities which he could exercise with the children in Sydney. Because of the orders that I propose to make the father will be required to travel to the central coast using public transport once a fortnight. He does not have a motor vehicle. The mother has a motor vehicle and is able to deliver the children to Sydney once a fortnight. I do not consider it to be either onerous or disruptive to the children that their time with their father should take place once a fortnight on the central coast and once a fortnight in Sydney and I propose to make that order.
The final matter that was in dispute between the parties was the collection of the children by the father and the supervisor from their school on the week days when the father sees the children. The mother opposed collection from the school, however, the mother conceded that there was no evidence or suggestion that the father had attended at the school inappropriately or that he had done anything in relation to the school that was inappropriate. And in those circumstances it is my view that the children would welcome the interaction of the father with their school. They will have the opportunity to show him where they go to school and it will be a small involvement by him in that very important aspect of their life. And I propose to make that order.
That will require an amendment to the existing orders and the amendment will be in order 5(e) to add to the order these words, “except for the purpose of compliance with order 3”. So that order 5(e) will read, “That the father not attend on the children’s place of residence or school except for the purpose of compliance with order 3”.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 February 2012.
Associate:
Date: 1 March 2012
0
0