Tanner and Tanner

[2007] FamCA 1495

FAMILY COURT OF AUSTRALIA

TANNER & TANNER [2007] FamCA 1495

FAMILY LAW – CHILDREN – Parenting orders – Parties seek orders by consent – Mother with psychiatric problems - Final orders

Family Law Act 1975 (Cth)

HUSBAND: Mr Tanner

WIFE: Ms Tanner

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1888 of 2005

DATE DELIVERED: 27 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 27 November 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms. Grobtvch

SOLICITOR FOR THE HUSBAND: Kennedy Wisewoulds

COUNSEL FOR THE WIFE: Mr. Seivers

SOLICITOR FOR THE WIFE: Forte Family Lawyers

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms. Jenkins

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Victoria Legal Aid

Orders

1. BY CONSENT IT IS ORDERED in accordance with the Minutes of Proposed Parenting Orders sealed and attached hereto AND IT IS DIRECTED that such Minutes remain upon the Court file.

2. That all extant applications for parenting orders will otherwise be dismissed and removed from the list of matters awaiting finalisation.

3. That the independent children’s lawyer be discharged forthwith.

4. That pursuant to s.62B and s.65DA(2), of the Family Law Act1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

5. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

6. That pursuant to Rule 19.50 of the Family Law Rules2004 this matter reasonably required the attendance of solicitors appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1888 of 2005

MR TANNER  

Husband

And

MS TANNER  

Wife

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties married in November 1989 and separated in October 2005 after the proceedings had issued.  They have three children, being S, born in February 1994, E born in August 1990 and J born in September 2001.

2. These proceedings commenced when the husband filed an application on 8 June 2005.  It was met by a response, filed by the wife on 16 November 2005.  Subsequently, she filed an amended response, on 21 April 2006, and he filed an amended reply, on 24 May 2006. 

3. Earlier this year, the parties resolved parenting issues and sought that final parenting orders be made, by consent.  The application for those orders came before a registrar.  Reasonably in my view, the registrar declined to make the orders, as there was some concern about the wife's psychiatric condition, having regard to evidence raised in the course of the proceedings.  There had also been some DHS involvement with the family.  Today, I have granted leave to the wife to file an affidavit sworn by Dr R on 26 November 2007.  Dr R is the present treating psychiatrist of the wife.  He noted that Dr H had been involved in her treatment earlier. 

4. Dr. R deposed to the wife’s depressive illness and to the treatment she is receiving.  His evidence is that, with a combination of treatment, her prognosis is fairly good.  She should continue to function at her current level; she can live alone and look after her children, pursuant to the arrangements of which he had been advised by the parties.  His evidence was that the wife could comply with the various requirements in the orders.  He did not think that she posed any risk to her children.  Further, he had met with the wife’s parents and understood that they would provide support, if and when required, and was satisfied they would contact him if they became concerned about their daughter at any time.  The wife herself told him that she was willing to call on them if she were having difficulty.  The wife remains unfit to engage in paid work.

5. The court and the family are fortunate to have had the involvement of an experienced independent children's lawyer and experienced solicitors for the parties.  Today they join in seeking that final parenting orders be made in terms of the document provided to me.  Proposed orders would provide for S and J to spend time with the wife on an unsupervised basis.  E is 17.  The orders contain no specific provisions in respect of her but a note records that each will use their best endeavours to encourage E to spend time with her mother, and to re-establish an ongoing relationship.

6. The Family Law Act 1975 makes clear the importance to children of parents cooperating and agreeing on arrangements for their children.  It stresses the importance to children of having as meaningful a relationship as possible with both parents, and the importance of protecting children from violence and abuse.  Having regard to the additional evidence from Dr R, the support of the independent children's lawyer, the presence of the father at court today and all the evidence filed, I am satisfied that it is in these children's best interests that the proposed orders be made today, by consent.  I will make orders in terms of the minutes.  Pursuant to them, the parties will have equal shared parental responsibility for the children. 

7. Applications for final property orders have not been determined. I appreciate that the parties were content to transfer the property applications to the Federal Magistrates Court.  There is not a large pool of assets and the ambit of the dispute is relatively narrow.  If this were the first hearing of the case, I would transfer it to the Federal Magistrates’ Court.  But it is not the first hearing.  The case is in my list to be managed and I think more, rather than less, delay will occur if I send the case to the Federal Magistrates’ Court now.  I would hope to give it a hearing date before Easter.  At the end of this callover, I will fix a “not before” date, and advise the parties of it.

I certify that the preceding 7 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

26 May 2007