[2007] FamCA 337
FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT MELBOURNE NO. DGF 766 of 2005
IN THE MATTER OF:
MS STEWART (Father)
&
MR BAIN (Mother)
&
INDEPENDENT CHILDREN’S LAWYER
EX TEMPORE JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST
Date of Hearing: 8, 9, 10, 11, 12, 22 & 23 January 2007
Date of Judgment: 25 January 2007
Appearances:
Mr Devries of counsel, instructed by Kerr & Thomas, Solicitors on behalf of the Applicant (mother)
Ms Phelan of counsel, instructed by Brian J Hyams, Solicitors, on behalf of the Respondent (father)
Ms O’Connell of counsel, instructed by Robert Halliday & Associates, Solicitors, on behalf of the Independent Children’s Lawyer
FAMILY LAW - CHILDREN - Mother's application for relocation (having earlier in 2004 secured a residence order by consent in her favour with the father to have specified contact) to their 9 year old son - The issue at that time was her application there be no contact - Despite the court orders, the mother failed to comply nor encourage contact - Father opposed relocation and sought residence - Long trial - Orders for residence made in favour of father - Contact to mother - Relocation refused
INTRODUCTION
The mother in these proceedings filed a Form 1 Application on 17 May 2005 which she amended six days later on 23 May 2005. By that amendment she sought a number of orders which reflected her then attitude towards the father and the time he was to spend with their son, who was born in September 1997.
The child has at all times lived with his mother who sought an order for leave to relocate with him to Tasmania upon her giving two months' notice to the father in writing. This was, as agreed between all parties at the commencement of the hearing, a significant issue for my determination, accepting that the paramount consideration was the child's best interests. The issue of the court's leave permitting the mother to return to Tasmania with the child was collateral to that fact.
The mother sought a further order that pending her relocation the father spend time with the child on a supervised basis for four hours once a month at a nominated contact centre until he was 12 years of age, when it would become unsupervised in accordance with the child's wishes.
By a Form 1A Response filed on 24 June 2005 the father sought an order that the Amended Form 1 Application filed by the mother be dismissed, relying upon orders that were made by me by consent on the fourth day of a trial which commenced on 25 October 2004. He also filed a Form 1A Response on 24 May 2005 seeking an order that the Child Support Agreement entered into between the mother and himself on 8 September 1997 as varied on 1 August 1998 be further varied and that the rate of support payable to the mother be at a rate assessed by the Child Support Agency.
I…
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CaseChat Overview and Summary
The court's reasoning led to the establishment of equal shared parental responsibility for long-term decisions. The child was ordered to live with the father, with specific provisions for the child to spend time and communicate with the mother on alternate weekends, during school holidays, and on Mother's Day. Further orders addressed the father's obligation to inform the mother about the child's schooling and to authorise the mother's access to school activities. Both parents were also ordered to inform each other of any illness or emergency affecting the child and to authorise communication with treating health professionals.
Additionally, the court imposed restrictions on the parents, restraining them from taking the child to other psychologists or counsellors without the agreement of the Independent Children's Lawyer, and from causing the child to use or be known by any name other than his given name. The parents were also restrained from removing the child from Australia, with a request for the child's name to be placed on the Watch List and any existing passports surrendered. The court also discharged a previous Child Support Agreement and extended the appointment of the Independent Children's Lawyer. The final orders discharged all previous parenting orders and dismissed extant applications.
Orders
Orders of the court
1.
That all previous parenting orders be discharged.
2.
That the father and the mother have the equal shared parental responsibility for the child, a son, born in September 1997, including equal responsibility for the making of decisions regarding long-term issues in respect of the child.
3.
That the child live with the father.
4.
That the child spend time and communicate with the mother as follows:
4.1 from 6.20 pm Friday to 4.30 pm Sunday each alternate weekend commencing 16 February 2007 (extending to include any public holiday or curriculum day that falls on either side of the weekend that the child is to be with the mother);
4.2 for one half of all school term holidays commencing at 10.00 am on the day after the conclusion of school and concluding at 4.00 pm on the middle Saturday of the holidays;
4.3 for one half of the long summer vacation commencing on 10 January 2008 in the 2007/2008 holiday period and in each alternate year thereafter and the day after the conclusion of school in the 2008/2009 holiday period and each alternate year thereafter;
4.4 from 10.00 am Mother’s Day to the commencement of school the next day and the time spent with the mother be suspended from 10.00 am on Father’s Day;
4.5 by telephone, mail or email at all reasonable times;
4.6 for such further and other periods as agreed in writing between the parents.
5.
That the father inform the mother in writing as soon as practicable of the address of the school at which he proposes to enrol the child and authorise such school to provide the mother with all information usually provided to parents.
6.
That the mother be entitled to attend all activities of the school normally attended by the parents.
7.
That each of the mother and father inform the other parent of any illness or emergency affecting the child including the name and telephone number of any treating health professional and authorise such professional to communicate with the other parent, if so requested.
8.
That each of the mother and father be and are hereby restrained from taking the child to any other psychologist/psychiatrist/counsellor save for that person in paragraph 9 hereof save with the agreement of the Independent Children’s Lawyer.
9.
That the father be at liberty to engage the services of Ms M or other like professional to assist the child in settling into his household, and such professional be at liberty to provide a report to the court in respect of the child and the parties’ compliance with these orders.
10.
That the father and mother be and hereby are restrained by themselves, their servants and agents from:
10.1 causing or allowing the child to use or be known by any name other than [the child].
11.
That the mother and father, their servants and agents be and hereby are restrained from removing the child from the Commonwealth of Australia and the Marshal of the Federal Police be requested to place the child’s name on the Watch List either by the name SB or HB or PB, or any other name.
12.
That any passport held by the mother or her agent on behalf of the said child be surrendered to the Registrar of the Family Court of Australia.
13.
That the appointment of the Independent Children’s Lawyer be extended to 20 January 2008 AND THAT Victoria Legal Aid, given the circumstances of the proceedings, be requested to fund the said period of extension.
14.
That the Child Support Agreement registered with the Child Support Agency in 1998 be and hereby is discharged.
15.
That pursuant to s.65DA(2) and 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 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.
16.
That all extant applications be otherwise dismissed AND THAT the proceedings be removed from the Active Pending Cases List.
(17) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.
18.
That the ex tempore judgment delivered this day be transcribed, placed on the Court file and made available to the parties and their professional representatives.
19.
That preparation of these orders be expedited.
20.
That all Exhibits and Subpoenaed documents be retained for a period of 30 days from this date at the expiration of which, subject to any further application, be returned to the providers of the same.
I certify that the preceding 282 numbered
paragraphs are a true copy of the
reasons for judgment herein of
the Honourable Justice Guest.
Associate to Guest J
Background
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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