Svanberg and Huber
[2012] FamCA 160
•6 February 2012
FAMILY COURT OF AUSTRALIA
| SVANBERG & HUBER | [2012] FamCA 160 |
| FAMILY LAW – CHILDREN – Consent orders |
| Family Law Act 1975 (Cth) |
| Re K (1994) FLC 92-461 |
| APPLICANT: | Mr Svanberg |
| RESPONDENT: | Ms Huber |
| FILE NUMBER: | ROC | 64 | of | 2011 |
| DATE DELIVERED: | 6 February 2012 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 6 February 2012 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Betts |
| SOLICITOR FOR THE RESPONDENT: | Bill Cooper & Associates |
Orders
UNTIL FURTHER ORDER, IT IS BY CONSENT ORDERED THAT:
That the children namely K born … January 2001, B born … June 2003, R born … December 2005, and C born … December 2005 (“the children”) live with their mother, Ms Huber.
That the father spend supervised time with the child K born … January 2001 at the N Contact Centre for periods of up to two (2) hours commencing Tuesday 3 January 2012 and every Monday thereafter.
That each parent shall:-
(a) Contact the N Contact Centre within 7 days and arrange an appointment for assessment for suitability for supervised time;
(b) Attend the assessment;
(c) Comply with any appointments made by the Contact Centre for supervised time;
(d) Comply with all reasonable rules of the Contact Centre;
(e) Comply with all reasonable requests or directions of the staff of the Contact Centre;
(f) Pay one half of any fees for the supervision on each occasion of supervision.
That the children B, R and C spend time with the father each alternate weekend from after school (3:00pm) Friday until 4:30pm Sunday commencing on 17 February 2012.
That Order 4 to be suspended for the period 30 March 2012 until 15 April 2012. (“Term 1 holiday period”).
That during the Term 1 holiday period:-
(a) The mother has the children from 30 March 2012 to 4:30pm Saturday 7 April 2012;
(b) The father has the children from 4:30pm Saturday 7 April to 4:30pm Sunday 15 April 2012.
That following the Term 1 holiday period Order 4 resume with the father’s first weekend to be 20 April 2012.
That handovers on non-school days occur at the N Contact Centre.
That the children attend T School.
That each parent organise their own parent/teacher interviews.
That the party who is not living with the children has reasonable telephone contact with the children, but failing agreement, from 6:30pm to 7:30pm each Tuesday and Thursday.
That each party is hereby authorised to obtain from the children’s schools all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
That during any period referred to in these Orders, in the event of the children being hospitalised or receiving medical attention, the parent spending time with the children shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
That save for the child K, either parent forthwith notify the other parent in the event that he or she is incapable of caring for the children, whether due to hospitalisation or not and shall place the children or cause the children to be placed in the care of the other parent for the period of their hospitalisation and/or incapacity.
That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
That the parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the children.
That the parties encourage and not undermine each child’s relationship with the other party.
That the mother allows and encourages the children to call the father “Dad” when speaking to him or about him.
That the parties ensure that when the children are living with or spending time with them, the children are at all times protected from conduct, whether actual or threatened, by any person towards the children or a member of the children’s family that causes any of the children to reasonably fear for, or reasonably be apprehensive about their personal well-being or safety or that of another family member.
That the parties ensure that when the children are in a motor vehicle or inside their home, that no other party smokes cigarettes in their presence.
That both parties be restrained from physically disciplining the children or permitting any other person to do so.
The proceedings are otherwise adjourned to a date to be allocated by the Registrar and advised to the parties.
That the mother’s costs of and incidental of today be reserved.
AND IT IS ORDERED THAT
The interests, in these proceedings, of the children, K born … January 2001, B born … June 2003, R born … December 2005, and C born … December 2005, be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Family Court of Australia at Townsville.
IT IS NOTED that publication of this judgment under the pseudonym Svanberg & Huber is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: ROC 64 of 2011
| Mr Svanberg |
Applicant
And
| Ms Huber |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Competing parenting applications are brought in respect of four children, K, born in January 2001, B, born in June 2003, C, born in December 2005, and R, born in December 2005. Interim orders are sought today.
The parties have each had the benefit of receiving legal advice from counsel, in the case of the mother, and from Ms Mead, who has kindly offered her services as duty lawyer at the Court his morning.
The parties have, to their great credit, been able to reach agreement about many of the matters that have otherwise been in dispute between them.
Although this Court tires of saying the same thing time and time again, nevertheless, it needs to be repeated that the best arrangements that can be made for children when their parents separate are arrangements made by agreement between their parents.
Not only is it sensible and intelligent to avoid a perfect stranger making decisions about their children, it is also incredibly important that children see their parents co-parenting despite their separation. It dramatically reduces the pain, I repeat, the pain that children experience when their parents separate.
So, it is commendable that these children’s parents have been able to put aside at least some of the disputes between them so as to arrive at an agreement today. I can only fervently hope that they will continue to do so in the future and ultimately reach agreement about what should happen, in terms of the co-parenting of these children, well into the future. Let us hope that it is not the triumph of hope over expectation.
Allegations of what the Family Law Act defines as abuse have been made in this case. I am told that Notices of Abuse have been filed by each of the parties.
In the main, those Notices of Abuse relate to emotional abuse, said to be perpetrated by each of the parties by the other. In addition, there are assertions of what might be described, in neutral language, as excessive disciplining by one parent made against the other parent and, in one case, a partner of one of the parents.
The provisions of rule 10.15A need to be considered then, in terms of the Court making orders by consent in accordance with the minutes that have been handed to the Court and indicated, on behalf of each of the parties, as being agreed to by them.
I am told that, overwhelmingly, the allegations relate to emotional abuse. As has again been said innumerable times by this Court, emotional abuse is just as harmful as sexual abuse, physical abuse or any other form of abuse. I will repeat that. Emotional abuse is just as harmful to children as sexual abuse, physical abuse or any other forms of abuse.
That allegation of abuse has been sought to be dealt with in these interim consent orders by the making of, in some cases, some supervised time with respect to K and by the parties each being restrained from physically disciplining the children or permitting any other person to do so.
In addition, the orders contemplate the making of what might be described as “anti-denigration orders” by each of the parties with respect to the other.
In addition, to the extent that the appointment of an Independent Children’s Lawyer might also assist in dealing with allegations of abuse, by adopting a (form of) supervisory role for so long as the proceedings are live in this Court. That order, in my view, also assists.
Accordingly, I am satisfied, within the terms of rule 10.15A, that the interim orders sought by each of the parties by consent deal with the issues of abuse within the meaning of that rule.
The orders are otherwise comprehensive and, in my view, given the circumstance of this case and the level of conflict evident between these children’s parents, they represent a sensible resolution of the issues between the parties. They are in the children’s best interests. An order is sought for the appointment of an Independent Children’s Lawyer. That order is appropriate, not only for the reason just referred to, but by reference to the matters enumerated in the decision of the Full Court in Re K (1994) FLC 92-461.
In that respect, I note that (a) there are allegations of abuse, as that term is defined within the meaning of the Act; (b) there is significant ongoing parental conflict at an extreme level; (c) that K is now 11 and her views might be considered to be important in the context of ultimate parenting orders that are made in respect of hers; and, finally, it seems to me that issues live between the parties, include the extent to which either or both of them have involved the children in their dispute.
For those reasons, it seems to me entirely appropriate that an Independent Children’s Lawyer be appointed in this matter on the usual terms.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 6 February 2012.
Associate:
Date: 22 March 2012
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Costs
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Natural Justice
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Procedural Fairness
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Remedies
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