Simmonds and Williamson

[2007] FamCA 1521

FAMILY COURT OF AUSTRALIA

SIMMONDS & WILLIAMSON [2007] FamCA 1521

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Ms Simmonds

RESPONDENT: Mr Williamson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1659 of 2006

DATE DELIVERED: 14 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 14 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr V. Caltabiano

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Mr W. Dunstan

Orders

1. All previous children’s orders be discharged.

2. The children M born … November 1994 and W born … July 2002 live with the Wife.

3. The Wife have sole parental responsibility for the children.

4. The children spend time with the Husband as follows: -

   a)fortnightly from 3:30pm Friday to 7:00pm Saturday;

   b)in the alternate week to the time referred to in a) hereof: -

   i)   for the child M from 3:00pm to 7:00pm Wednesday;

   ii)for the child W from 3:30pm to 7:00pm Thursday.

   c)during school term holidays from 8:00am Thursday until 5:00pm Saturday as agreed and failing agreement 30 days prior to the commencement of the holiday period, the first week;

   d)during the long summer vacation for two occasions from 8:00am Thursday until 5:00pm Saturday as agreed and failing agreement 30 days prior to the commencement of the holiday period, on the second and fourth weeks of the holiday period;

   e)from 4:00pm Christmas Day until 4:00pm Boxing Day 2007 and each alternate year thereafter;

   f)from 5:00pm Christmas Eve until 4:00pm Christmas Day 2008 and each alternate year thereafter;

   g)from 10:00am until 5:00pm Father’s Day, the Husband may elect to spend the time on the Saturday prior to Father’s Day by giving the Wife 14 days prior written notice of his intention to do so;

   h)as otherwise agreed between the Husband and Wife.

5. In so far as the times referred to in 4 hereof relate to the child M such times occur in accordance with her wishes.

6. For the purpose of time spent pursuant to 4 hereof the Husband collect the children from school, S Children’s Centre or the Wife’s home as the case may be at the commencement of the period and the Wife collect the children from the Husband’s home at the conclusion of the period.

7. The times referred to in 4a) hereof be suspended during all school term holiday periods and the long summer vacation and resume upon the resumption of school as though the vacation period had not taken place.

8. The Husband be and is hereby retrained from

   a)attempting to arrange directly with the children or either of them an increase in time, or

   b)discussing with the children or either of them any matters arising in this proceedings or concerning his mental health save for in the presence of a counsellor or therapist.

9. Each party as soon as practicable notify the other of any hospitalisation or of any serious illness or injury to the children or either of them.

10.All extant applications be otherwise dismissed.

11.That pursuant to s.65DA(2) & s.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 the ‘Fact Sheet’ and these particulars are included in these orders.

AND THE COURT NOTES

A. The Wife acknowledges that the children may wish to spend greater time with the Husband.  In the event that the children express such a wish the Husband and Wife shall as far as practicable respect such wishes and in the event of a dispute endeavour to resolve any issues concerning the children by utilising mediation with the B Centre.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1659 of 2006

MS SIMMONDS  

Applicant

And

MR WILLIAMSON  

Respondent

REASONS FOR JUDGMENT

1. I am dealing today with the wife's amended form 1 application filed 5 December 2007, supported by her affidavit filed on the same day.  The case was adjourned by me on 15 November and both the wife's solicitor and the independent children's lawyer have subsequently made contact with Mr. Williamson, the children's father.  I am entirely satisfied that he has known of today's proceedings and of the orders sought by the wife. 

2. Documents have been tendered that satisfy me that appropriate notice has been given to him.  I have seen a lengthy email response that he made to the Independent Children’s Lawyer’s office. He made it clear in no uncertain terms that for a complex variety of reasons he would no longer participate in these proceedings.  The matter is unopposed.

3. Very briefly, I am dealing with two children, M who is 13, and W who is five.  Their parents' relationship started in about 1988.  They married in 1991 and separated in July 2005.  The children have lived with their mother since then and have been seeing their father.

4. From the mother's material it seems that the father has had an ongoing battle with mental health issues.  He has been a patient from time to time in the T Clinic.  In 2005 he had a spell in … Hospital as an involuntary patient.  On her material, it is a problem with which he is still battling.

5. The children have been seeing their father on alternate weekends and each have spent a different mid-week evening with him.  It seems that there have been ongoing issues from the mother's perspective with the children's behaviour surrounding those periods. 

6. So far as M is concerned, things have clearly come to a head quite recently.  Attached to the mother's affidavit is a plaintive letter from M, dated 13 October 2007.  It shows an enormous amount of anger towards her father.  Both the mother's solicitor and the Independent Children’s Lawyer have been quite sensitive though in recognising that it also shows a great degree of sadness and some desire for her to be able to have an ongoing relationship with her father.

7. For those reasons the mother has proposed orders whereby the children will live with her, but still spend time with their father, provided that M agrees to do that.  Her proposal that the children live with her is entirely appropriate, in their best interests.  That has been the arrangement now for a number of years.  She has sought sole parental responsibility and, again in the circumstances of this case, that is entirely appropriate given the difficulties she would have with trying to reach major decisions with the father.

8. She is proposing continuing time between the children and the father.  As I noted, insofar as M is concerned, it is on the basis that it needs to accord with M's wishes.  In the circumstances of this case I think that is appropriate.  It accords with the independent children's lawyer's view of M's needs, having interviewed her, and I take into account too that when the mother read the letter, or it was brought to her attention, in accordance with the Independent Children’s Lawyer’s views she tried to arrange therapy between father and daughter.  Sadly, at this point, the father has not been prepared to commit to that. 

9. It seems important from M's point of view that he reconsider his position because it appears that she is very much in need of such help, and that she needs to be able to resolve her relationship with him. 

10. Otherwise, the mother seeks orders around the organising of the time between father and children and she has put in place holiday time, Christmas contact, Father's Day contact, all of which is appropriate.  She has proposed provisions restraining the husband from attempting to arrange time with the children directly, and restraining him from discussing with the children issues about the proceedings or his mental health, save in the presence of a counsellor or therapist.  That appears to safeguard the children's interests quite appropriately.

11. The various other provisions in the orders are entirely reasonable.  There is a notation that the wife acknowledges that the children may wish to spend greater time with the husband.  In the event that they express such a wish, the parents as far as practicable will respect such wishes, and in the event of a dispute, endeavour to resolve any issues concerning the children by utilising mediation with the B Centre.  Again I think that is an entirely reasonable provision.

12. It important that not only the orders today but also these brief reasons for judgment be delivered to the father.  He should understand that there has been no suggestion today in his absence that he should not be involved with the children.  To the contrary, the hope is that he will continue his involvement with the children.  I am saddened to hear that he did not see the child W yesterday.  The children are obviously innocent in the course of their parents' dispute, and at this stage there is no suggestion that they should not be able to enjoy the relationship.  Even when it comes to M, all that is being said is that she and her father need to use some expert counselling and mediation to help them advance their relationship.  I hope he will see his way clear to continuing his relationship with the children, to ensure their best chance for healthy growth into adult-hood.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date:  14 December 2007