Valia and Valia

[2016] FamCA 597

FAMILY COURT OF AUSTRALIA

VALIA & VALIA [2016] FamCA 597

FAMILY LAW – CHILDREN – MAGELLAN – Where there are allegations of sexual abuse – Where consent orders are made during the final hearing – Where the court is satisfied that the consent orders are in the best interests of the children.

Family Law Act 1975 (Cth)
Family Law Rules (2004) (Cth) r 10.15A

APPLICANT: Ms Valia

RESPONDENT: Mr Valia

FILE NUMBER: SYC 332 of 2015

DATE DELIVERED: 20 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 20 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maurice

SOLICITOR FOR THE APPLICANT: Pigott Stinson Lawyers

COUNSEL FOR THE RESPONDENT: Mr Ginges

SOLICITOR FOR THE RESPONDENT: The Law Shoppe

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adams & Partners Lawyers

Orders

BY CONSENT IT IS ORDERED

PARENTING

1. That all previous parenting orders made in these proceedings are discharged.

2. That the children of the relationship B born … and C born … (“B and C”) live with the Mother.

3. That, subject to order 4, the Mother shall have sole parental responsibility for B and C.

4. That the Mother shall:

   i.Within 7 days, notify and authorize the school and day-care providers that the Father is permitted to receive copies of all school reports, photographs (at his cost) and awards or other achievements  of B and C;

   ii.Within 7 days, notify and authorize the school and day-care providers that copies of any notices regarding significant school events such as Parent/Teacher meetings; concerts; sports carnivals; school ‘information days’ are to be sent to the Father’s address D Street, Suburb E, NSW, 2114, and such later changed address as the Father may notify the school or day-care provider;

   iii.Within 7 days, notify and authorize the school and day-care provider that the Father is permitted to attend the school and/or day-care provider for the purposes attending any such significant school event (as above) and facilitating time with the children as set out in orders 6 and 7 below;

   iv.advise the Father of any significant issue requiring either B and/or C to attend a specialist or be hospitalized;

   v.consult the Father in relation to proposed changes in their schools;

   vi.consult the Father as to any other significant matter as to their long term care, welfare or development and make genuine effort to reach agreement;

   vii.in all circumstances where consultation with the Father has not resulted in agreement, the Mother is authorised to make final decisions regarding matters affecting B and C’s long term care, welfare or development.

5. That in the event that, whilst with the Father, either B and/or C requires emergency medical treatment and the Mother cannot be contacted then the Father shall be authorised to make all necessary decisions regarding treatment of the child provided he makes all reasonable efforts to contact the Mother in advance and, if such is not possible, contacts the Mother at the first available opportunity.

6. That B and C spend time with the Father as follows:

   a.Supervised for a period of 8 weeks by Bridging Families each alternate week commencing 30 July 2016 for a period of up to 2 hours on a Saturday, and concluding on 10 September 2016;

   b.Supervised for a period of 8 weeks by Bridging Families each alternate week commencing 17 September 2016 for a period of up to 3 hours on a Saturday, and concluding on 12 November 2016;

   c.Supervised for a period of 8 weeks by Bridging Families each alternate week commencing 26 November 2016 for from 10 am to 4pm on a Saturday, and concluding on 14 January 2017;

   d.Unsupervised for a period of 12 weeks for two days (being a weekend) each fortnight between 10 am and 4pm on the Saturday and Sunday commencing 28 January 2017 and concluding on 15 April 2017;

   e.Unsupervised for a period of 12 weeks from 10 am on Saturday until 4pm Sunday, each fortnight, commencing 29 April 2017 and concluding on 15 July 2017;

   f.Unsupervised for a period of 12 weeks each fortnight from after school on Friday to 5pm on Sunday commencing 28 July 2017 and concluding on 20 October 2017;

   g.Thereafter unsupervised each fortnight from after school on Friday to the commencement of school, commencing 3 November 2017;

   h.Such other times as may be agreed by the parties in writing.

7. The children shall also spend additional time with the Father as follows:

   a.During the School Holidays commencing 1 January 2018, an additional 5 days until the end of that Holiday period. Such time to be as agreed, and in default of agreement, that period to be from 8am on 4 January 2018 until 5pm on 8 January 2018;

   b.Thereafter, during all non-Christmas period school holidays, an additional 5 days during such holidays, as agreed and in default of agreement, shall be between Monday 8am – Friday 5pm in the second week of such holidays, and where the Father’s time otherwise commences on the Friday or concludes on the Monday, such time to continue;

   c.Thereafter, during each Christmas period school holidays, an additional 10 days. Such time to be as agreed, and in default of agreement, that period to be from 8am on 4 January 2019 until 5pm on 13 January 2019 and where the Father’s time otherwise commences on the Friday or concludes on the Monday, such time to continue;

   d.Where each of the following occasions do not fall when the children are spending time with the Respondent Father, then they shall spend time with him as follows:

   i.Christmas Day between 1pm and 5pm each alternate year commencing 2016 and between 9 am and 1pm each alternate year commencing 2017;

   ii.Good Friday between 9am and 5pm each alternate year commencing 2017 and between 9am – 5pm on Easter Sunday each alternate year, commencing 2018;

   iii.New Year’s Day between 9 am and 5pm for each alternate year commencing 2017 and New Year’s Eve from 6pm until 10pm on each alternate year commencing 2017;

   iv.Religious Festival Day between 9am  - 5pm;

   v.Father’s Day from 9am – 5pm , and where Mother’s Day falls on a weekend during which time the children spend time with the Father, the Father shall return the children to the Mother at 9am on that day;

   vi.On each of the children’s birthdays from after school to 6pm where the children’s birthdays fall on any school day and from 9 am to 1pm on a non-school day;

   vii.Where the children are to spend additional time with the Father prior to 28 January 2017, such time shall be supervised in accordance with these Orders;

8. Where an order provides for the children to spend time with the father commencing after school but the Friday is not a school day or the child is not at school, then time shall commence at 5pm. Where an order provides for the children to conclude time with the Father on a Monday morning, but that is not a school day or the child will not be at school then time shall conclude at 8am.

9. All supervision to be undertaken by Bridging Families and to be paid for by the Father.

10. The children are to have telephone time with the Father two times per week between 6pm and 6.30pm on a Tuesday and a Thursday, commencing on 2 August 2016;

11. Unless as otherwise provided for in these orders, all changeovers to occur at McDonalds in Suburb F;

12. That each party, Mr Valia and Ms Valia, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of B born on … 2009 and C born … 2011 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by the placing the names of the said children on the Airport Watch List in force at all points of departure and arrival in the Commonwealth of Australia  and maintain the children’s names on the Watch List until the Court order its removal;

13. That neither parent denigrate the other parent in the hearing and/or presence of the children, or permit anyone else to do so;

14. That each parent attend and complete the “keep in contact” course run by Unifam in Parramatta;

15. That each parent undertake all reasonable endeavours to attend and complete the Triple P Parenting course within 6 months (subject to availability), and the Father to complete such other course or counselling as may be recommended by Dr G;

16. That the children attend upon such counsellor or psychologist as is to be recommended by Bridging Families for de-briefing sessions after the first 2 contact visits between the children and the Father;

17. The Parties are authorised and directed to provide a copy of Dr G’s report, dated 10 March 2016, to the such counsellor or psychologist referred to in order 16, and also to be provided to Bridging Families;

18. Within 7 days, each parent to provide the other via their solicitors with an email address and a mobile phone number which that parent may be contacted for the purposes of implementing and facilitating these orders. That, except regarding the children’s telephone contact with the Father, the parents shall attempt firstly to communicate by email and thereafter by mobile phone if necessary.

19. That the parents utilise a “communication book” to record and communicate events or issues relating to the children’s time with that parent as may be necessary or appropriate.

20. That each party notify the other party in writing within 7 days of any change of residence with the address of such residence.

PROPERTY

1. That within 14 days of the date on which these orders are made, the Mother and Father shall sign all documents and do all things as may be required to close the controlled monies account held by Pigott Stinson on their behalf and disburse the net balance as follows:

   a.$4,000 to be paid to the Father’s solicitor’s trust account on account of the payment to Bridging Families;

   b.30 per cent of the balance to be paid to the Father’s solicitor’s trust account;

   c.The remaining balance to be paid to the Mother’s solicitors’ trust account.

2. That subject to any other order herein, each party shall be declared as against the other party, the owner at law and in equity of all other assets vesting in their name and/or in their possession including but not limited to monies in bank accounts, superannuation entitlements, motor vehicles, furniture and chattels and choses in action.

3. That the father shall remain solely liable and responsible for his National Australia Bank credit card and personal loan debt which is unidentified.

4. That each party shall remain solely liable for any other liability, including to the ATO, in their own names.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Valia & Valia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 332 of 2015

Ms Valia

Applicant

And

Mr Valia

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I find that the consent property orders constitute a just and equitable distribution of the property of the parties in particular in considering the disparity in relation to s 75(2) factors following the explanation from counsel as to how this operates as a division of the property of the parties. 

2. In relation to the consent parenting orders I have read the affidavit of the mother in these proceedings which contains therein sufficient explanation to comply with Rule 10.15A and more importantly was addressed in terms that given the contested evidence in the proceedings allow me to be satisfied that the agreed terms are in the best interests of the children. 

3. In coming to that conclusion I draw support from the agreement from the Independent Children’s Lawyer that these terms are in the interests of these two children.  Particularly given the terms of the affidavit, I find that the orders here both deal with issues relating to the maintenance of meaningful relationships with both of the parents and also the proper protection of children. 

4. Accordingly, I make orders in terms of the consent parenting orders and the consent property orders as signed by the parties today and dated 20 July 2016. 

5. I make a further order granting leave to the father to, if required to do so for his work purposes, release to his employer copies of the mother’s affidavit material in these proceedings. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 July 2016.

Associate:

Date:  21 July 2016