Sharpe & Boone
[2021] FedCFamC2F 690
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sharpe & Boone [2021] FedCFamC2F 690
File number: MLC 9963 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 16 December 2021 Catchwords: FAMILY LAW – Final parenting – undefended by children’s father – consent of the applicant and first respondent – where second respondent does not attend – where court is satisfied second respondent is aware of proceedings – best interests of children – matter finalised – orders made. Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 7 Date of hearing: 16 December 2021 Place: Melbourne Solicitor for the Applicant: Pentana Stanton Lawyers Solicitor for the First Respondent: Freemont Family Lawyers Solicitor for the Second Respondent: No Appearance ORDERS
MLC 9963 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SHARPE
Applicant
AND: MS BOONE
First Respondent
MR CLINE
Second Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
16 DECEMBER 2021
THE COURT ORDERS THAT:
BY CONSENT OF THE APPLICANT AUNT AND FIRST RESPONDENT MOTHER:
1.The children X born in 2011 and Y born in 2012 ("the children") live with the Mother.
2.The children have telephone contact on a fortnightly basis with the Respondent Father each Sunday for a period of thirty minutes.
3.The children spend time with the Father at times as agreed between the Mother and the Father.
4.The children spend time and communicate with the Paternal Aunt as follows:
(a)Face-to-face contact, in accordance with the children's reasonable and practicable wishes - with the children to be at liberty to contact the Paternal Aunt to request to spend time with her.
(b)Via telephone, Facetime, text message or other electronic means, in accordance with the children's reasonable and practicable wishes - with the children to be at liberty to contact the Paternal Aunt for such electronic contact, and the Paternal Aunt be at liberty to respond; and
(c)Such further and other times as agreed between the Mother and the Paternal Aunt in writing.
5.For the purpose of changeover, unless otherwise agreed between the Mother and the Paternal Aunt in writing, the Paternal Aunt collect the children from the Mother's residence at the commencement of time, and deliver the children back to the Mother's residence at the conclusion of time.
6.The Paternal Aunt be at liberty to contact the Mother in writing, including by email, to discuss and arrange the spend time arrangements between her and the children, and the Mother and the Paternal Aunt are to keep each other advised of their email addresses for this purpose.
7.The Paternal Aunt be at liberty to send the children letters, cards and gifts and the Mother is to ensure that the Paternal Aunt remains informed of the address or PO Box to which these can be sent.
8.Within fourteen (14) days of the date of these orders:
(a)The Mother attend upon her GP to obtain all necessary referrals to attend assessment and counselling for drug and alcohol issues, and follow all reasonable directions of that counsellor; and
(b)The Mother do all acts and things and make all necessary enquiries to enrol in the Tuning Into Kids Program, with the Mother to provide the certificate of completion to the Paternal Aunt's solicitor (or to the Paternal Aunt herself if self-represented).
9.Without admitting the necessity for same:
(a)The parties, their servants and/or agents are each hereby restrained from abusing, insulting or otherwise denigrating the other party, their family, their partner, or the children in the presence of the children or in circumstances where that attitude could come to their attention;
(b)The parties, their servants and/or agents are each hereby restrained from discussing these proceedings and/or any part of them with the children, and/or involving them in any dispute between them;
(c)The parties are each hereby restrained from committing family violence against the other and/or the children;
(d)The parties are hereby restrained from consuming alcohol to excess while the children are in their care, nor allow any other person to do so; and
(e)The parties are hereby restrained from consuming prescribed medication to excess while the children are in their care, nor allowing any other person to do so.
10.Pursuant to section 68Q of the Family Law Act 1975, this order prevails over any existing family violence order to the extent of any inconsistencies.
AND THE COURT NOTES THAT:
A.The Paternal Aunt wishes to spend time with the children every third weekend of the month from 10:00 am Saturday to 5:00 pm Sunday.
B.The Mother will facilitate the children spending time and communicating with the Paternal Aunt in accordance with their reasonable and practicable bona fide wishes.
C.The Mother will ensure that all letters, cards and gifts sent to the children by the Paternal Aunt are provided to the children.
D.Pursuant to ss.65DA(2) and 62B 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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Sharpe & Boone has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREJUDGE O’SHANNESSY
These are the settled reasons of an ex tempore judgment. In the matter of Sharpe & Boone & Cline, the paternal aunt, Ms Sharpe (‘the Paternal Aunt’), and the mother, Ms Boone (‘the Mother’), have reached consent as to final orders in regard to the children, X and Y (‘the children’). X is 10 and Y is eight and they attend school satisfactorily. The children live with the Mother and the Mother and Paternal Aunt now agree about the time and communication the Paternal Aunt should have with the children. Hence as to the Father, the proceedings are what is known as undefended.
There is a concern as to Ms Boone's alcohol use and the consent orders provide for her to undertake counselling in regard to that to assist her with that. The father, Mr Cline (‘the Father’), has not had any significant role in the children's lives since events that led to an intervention order back in 2015. He has had fortnightly telephone contact with the children regularly over that period but has only had one time of face to face time for the limited period of four hours. That face to face time was agreed between the Mother and the Father.
The first question I must determine is whether I should proceed on an undefended basis as to the Father. I am satisfied from the matters that I have been informed of by Mr Jones, solicitor for the Mother and directly by the Mother today that the Father is well aware of the proceedings. The solicitors for paternal aunt and for the Mother have sensibly copied the Father into all or at least the bulk of emails between the Mother and the Paternal Aunt’s legal practitioners to the Father’s current email address, hence he has been able, should he wish to, to see the state of negotiations between the Mother and the Paternal Aunt and hence is well aware of the proceedings. Further, there was a telephone conversation between the Mother and the Father on the evening of Wednesday, 15 December 2021 whereby the Father confirmed that he had been receiving details by email, that he was aware of the detail of the proposed final orders and that he agreed with them.
What is significant to me is the solicitors for the Paternal Aunt and the Mother have gone to some trouble and had the common sense, to keep the Father in the loop to the extent that he wished to be involved in the proceedings.
In all of those circumstances and including the fact that the orders that are made are entirely consistent with the child impact report dated 22 November 2021 and the fact that the Paternal Aunt and the Mother agree on these arrangements convince me that the orders proposed are in the children’s best interests. I do want to acknowledge and compliment the solicitors for the sensible practice of copying the Father in on the email negotiations and that practice puts it beyond doubt that he has had the opportunity to participate in these proceedings which is a significant important matter to me.
The orders are now sought by the consent of the Mother and Paternal Aunt and on the basis that the Father has had the opportunity to participate in the proceedings.
I want to thank the Mother and the Paternal Aunt for having maturity and common sense to sort the arrangements out themselves notwithstanding their past unhappiness and difference, and I want to acknowledge Ms Foley and Mr Jones for the assistance you have been to the court and to the children as well as your respective clients, and I am grateful to them for that. Thank you very much. I make the orders sought.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 February 2022
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