Tony & Masjid

[2007] FamCA 1607

FAMILY COURT OF AUSTRALIA

DYSON & DYSON [2007] FamCA 1607

FAMILY LAW – CHILDREN – Final hearing of a LAT procedure and orders made by consent consequent upon strong recommendations made by the Family Consultant – Children suffering nemaline myopathy requiring special consideration – Estrangement from their father

Family Law Act 1975 (Cth)

APPLICANT: Ms Dyson

RESPONDENT: Mr Dyson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3552 of 2005

DATE DELIVERED: 10 December 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 10 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fatouros

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: Mr Pannifex

SOLICITOR FOR THE RESPONDENT: John Burgess & Co.

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Hooper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sue Macgregor

Orders

1. That save that the wife have sole responsibility for the long term health issues relating to the children, the Husband and Wife shall have joint responsibility for the long term care, welfare and development of R born … October 1990, S born … June 1993 and B born … November 1992 (“the children”).

2. That the children live with the Wife.

3. That the Husband and the Wife and the children attend family therapy at a Centre nominated by the Independent Children’s Lawyer to address the children’s issues with their Father in an endeavour to improve the relationship and the time spent together AND THAT such counselling continue for a maximum of 6 months from commencement date AND THAT the parties shall seek funding for the costs of such, failing which each party shall pay half the reasonable costs of such therapy.

4. That the children’s time with the Husband shall be such time as is recommended by the counsellor conducting the Family Therapy and agreed to by the Husband and Wife and the children.

5. That the children attend at a time nominated by the children and agreed to by the Husband at the Husband’s residence, …, F on a day prior to Christmas Day 2007 and spend time with their Father and receive Christmas presents for a period of time nominated by the children.

6. That all previous parenting orders are hereby discharged.

7. That the appointment of the Independent Children’s Lawyer be discharged.

8. That all extant applications be otherwise dismissed and the proceedings be removed from the Active Pending Cases List.

NOTATION

1. It is noted the Husband wishes the children to be aware he is available at all times to spend time with or talk to them if all or any of them so desires.

2. The husband be at liberty to discuss any medical issues relating to the children with their treating health professionals.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3552 of 2005

MS DYSON  

Applicant

And

MR DYSON  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me pursuant to Division 12A of the Less Adversarial Trial procedures. It has been before me earlier, and in particular more recently on 17 August 2007 when it was set down for a second listing by me on the presentation of a family report by Mr N, a Family Consultant. His report, dated 26 November 2007, is a very comprehensive one and without saying anything further, it is quite clear that the evaluation and recommendations are quite strong arising from the Consultant's discussions with both the husband, the wife, and each of the three children R who was born in October 1990 and is 17 years of age; S who was born in June 1993 and is 14 years of age, and B who was born in November 2007. He is 10 years of age.

2. The short background is that the parties married in November 1988. Following some unhappy differences between them they separated under the one roof on 24 May 2005, and ultimately pursuant to process, the husband left the former matrimonial home, as I understand it, some time in late 2005. Interim orders were made by the court on 22 March 2006 and Consents to proceed pursuant to provisions of Division 12A of the Family Law Act 1975 (as amended) were entered into on 11 May 2007.  Since that time I have dealt with the proceedings on two occasions. 

3. It is quite a tragic and difficult history as R and S suffer from nemaline myopathy which is, as I understand, a rare genetic disorder.  R was diagnosed at two years of age.  S too suffers the condition.  Both children are in wheelchairs.  S was diagnosed suffering nemaline myopathy at five years of age. 

4. I have carefully read the report of Mr N and the very helpful report of Dr S, who is a respiratory physician.  His report is dated 16 October 2007.  Without being seen to be unduly comprehensive in describing the condition, as I understand it, those suffering nemaline myopathy have a significant issue with respect to mobility and children require assistance, for example, getting in and out of chairs and motor vehicles, getting up in the morning and with their personal care involving showing, toiletry, dressing, eating, meal preparations and the like.  This requires, as was deposed in the court documents, a fit and active strong carer. 

5. R also suffers a severe restrictive lung disease, with nocturnal respiratory failure requiring a ventilator.  He also suffers a scoliosis condition which is a progressive disorder.  It is noted in the documents I have read that S's condition will deteriorate. 

6. The report of Mr N as I said is a very comprehensive one and his recommendations are quite clear.  He recommends, based on the information with which he is seized, that R, S and B continue living with their mother and that she be given sole parental responsibility.  However, I note and it seems to me to be a perfectly appropriate Minute to the order, that save that the wife have sole responsibility for their long‑term health issues, both the husband and the wife have joint responsibility for the long-term care and welfare of the three children. 

7. It was recommended by Mr N that the husband and the wife attend a post‑separation parenting education program in an effort to improve their communication.  The children and the parents will attend family therapy to address the children's issues with their father in an endeavour to improve their relationship and the quality of the time they spend together. 

8. Significantly, Mr N recommended that attempting to resolve matters in therapy should not occur for “an indefinite period” if no progress was occurring, and for that reason he recommended that therapy should cease after approximately six months in the event that there was no improvement in the relationship between the children and their father.  This too has been provided for in the Minute of Proposed Orders. 

9. I have had outlined to me a helpful submission by Mr Pannifex, and accurately described by him as “a reality issue on the part of the husband” in entering into these Consent Proposed Orders which I have marked Exhibit “A”.  That is correct.  It is the husband's hope that the matter will advance in the future, and it is my expectation that the wife will do all things possible to facilitate that long-term aspiration in the restoration of the relationship between the husband and the three boys.  A Notation to the order sets out that it is the husband's wish for the children to be aware that he “is available at all times to spend time with them or talk to them if they so desire”.  I would have the expectation that this will be explained and significant emphasis placed upon that Notation by the Independent Children's Lawyer with the children and delivered in a sympathetic and understanding way. 

10. I do appreciate that there is conflict between the children and their father for various reasons which I need not outline in the course of these short remarks.  They have been adequately set out in the report of Mr N.  However, a restoration of the relationship between the husband and the boys into the future is a goal that both the husband and the wife should aspire to achieve.  That can be done with positive explanations by the wife to the boys on the value of family, and to encourage them with the passage of time to seek out to restore and renew a loving parental relationship with their father.

11. It seems to me that the husband has, as described by Mr Pannifex, entered into the orders as “a reality issue”.  However that does not mean that he leaves it open ended as the conclusion of an era, if I may put it that way.  He has exercised, in my view, reality and considerable patience.  That should be recognised by the wife and the children.  I place considerable emphasis on this Notation, for it is an important one in the whole understanding of the Objects of the Family Law Act 1975 which strongly emphasises the principles underlying those Objects, namely that R, S and B have the right to know and be cared for by both their parents.  They have a right to spend time on a regular basis with and communicate on a regular basis with both of them and that the husband and the wife share duties and responsibilities concerning the care, welfare and development of R, S and B.  They should agree about the future parenting of the children. 

12. They are obviously Objects that work in the utopian world of communication and split families that share a level of mutual responsibility, trust and cooperation.  This may not be possible as matters presently stand, as I see it arising from the report of Mr N, and having regard to the significance of the conditions that are suffered by the boys and indeed their father.

13. Accordingly, with the practical realisation of the assessment that the current situation is indeed a straitened one, that does not expunge the husband, the wife and the children working towards a situation of understanding and mutual respect.  That will mean sacrifice, but importantly it will mean understanding the value of family in the 21st century community in which we live, whilst at the same time paying proper regard to the serious genetic disorder suffered by the boys. 

14. I stress the importance of the Notation which has been earnestly and genuinely entered into between the parties, and my expectation is that there will be adherence to it in the form of good faith and respect.  Thus it is that it should be known to the children that the father is there to talk to them and to spend time with them at any time they desire.  That should be emphasised by the Independent Children's Lawyer to the three children.  Further, that it should also be made clear to them by the wife in a sensitive and persuasive manner.

15. I appreciate that there has been considerable dissension in the past.  So much so is clear from the affidavit material of each of the parties with each presenting a picture that underpins their polarised views.  It could have been a disaster situation for each of the husband or wife to litigate in this court.  It would have been a painful and tortuous avenue down which to travel.  I do not think it would have achieved much other than to deepen the rift between the father and the children and make things that much more impossible between them.  There is hope with these orders which can be seen by the fact that they are entered into by consent.  Consent orders of this nature require considerable dignity and respect, and that must be understood.

16. If there is pain on the part of either parent towards the other, then I take the strongest of all views that there is an obligation on the part of each of them to foster with the three boys the image of an absent parent.  That within itself requires personal discipline and an ability on the part of that parent to sublimate feelings of pain, hurt or anger so as to benefit the best interests of the children.  In saying that, I make it clear that I am not looking to the actions of the perfect parent in a utopian world, but to one who recognises the importance and qualities underpinning those concepts and strives to achieve that end.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 18 January 2008