Thpal and Xing (No. 2)

[2008] FamCA 1070

FAMILY COURT OF AUSTRALIA

THPAL & XING (NO. 2) [2008] FamCA 1070

FAMILY LAW  -  CHILDREN  -  Magellan  -  final orders by consent

Family Law Act 1975 (Cth)

HUSBAND: Mr Thpal

WIFE: Ms Xing

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8839 of 2007

DATE DELIVERED: 1 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 1 December, 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr. Barker

SOLICITOR FOR THE HUSBAND: Goldsmiths

COUNSEL FOR THE WIFE: Mr. Burns

SOLICITOR FOR THE WIFE: James McDermott

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Mr P.A. Marchetti

SOLICITOR FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Danielle Webb Lawyer

Orders

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

2. That all extant applications be otherwise dismissed.

3. That these applications be removed from the List of matters awaiting finalisation.

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

5. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8839 of 2007

MR THPAL

Husband

And

MS XING

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This case involves the parties’ three children, L, D and M, and the time they should spend with their father.  As the parties will be aware, this case has been before me a number of times.  I have read the material filed by the parties in 2007 and this year.  I have read the Department of Human Services reports and the report of Dr H.  The parties will recall earlier discussions about work done with the children by the Children's Protection Society and the involvement of Victoria Police. 

2. The court is fortunate to have had the assistance in this case of an experienced and able independent children's lawyer and experienced and able counsel for the independent children's lawyer.  The parties are also fortunate in that each has had an opportunity to discuss the case with respected legal practitioners, and with counsel with expertise in these matters.  I am aware the father was unrepresented for a period and it is in his interests and to his benefit that he has been able to be represented today.

3. Whilst these orders may seem on their face to be inconclusive, I accept they are made on the basis considerable weight must be given to the views of the children.  That is very important, given their respective ages and their accounts to treating professionals.  In asking the court to make these orders, by consent, each of the parties has done his and her best to balance the importance to the children of a meaningful relationship with both parents with the importance of protecting children from emotional and psychological and physical harm.

4. It must have been very difficult for each of the parties to reach this settlement.  I have not heard the case, so have not made findings about the evidence in dispute, but I have read enough of it to be comfortable in finding that these orders are likely to be in the best interests of the children.  As I am aware the parties have been told a number of times, the Family Law Act 1975 provides that it is the children’s best interests which are paramount, not their parents' wishes and desires.

5. In these circumstances I am satisfied that these orders should be made, and should be made as final orders.  The original signed minute will remain on the court file.  All extant applications will be otherwise dismissed. The subpoenaed documents can be returned and I certify for counsel.

6. I will order that these remarks be transcribed and placed on the court file.

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

Dated the           day of            2008.

…………………………………………
Associate.