Victoria and Bell

[2018] FamCA 1037

FAMILY COURT OF AUSTRALIA

VICTORIA & BELL [2018] FamCA 1037

FAMILY LAW – CHILDREN – Parenting – consent orders – where obligation on the Court to ensure children’s best interests are paramount – where issues of family violence – where consent orders made.

Family Law Act 1975 (Cth) ss 60CC, 60CG

APPLICANT: Mr Victoria

RESPONDENT: Ms Bell

INDEPENDENT CHILDREN’S LAWYER: Ms Dosanjh

FILE NUMBER: AYC 84 of 2017

DATE DELIVERED: 3 December 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Gill J

HEARING DATE: 3 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tesoriero

SOLICITOR FOR THE APPLICANT: Toner & May Legal

COUNSEL FOR THE RESPONDENT: Mr Devries

SOLICITOR FOR THE RESPONDENT: Ella Thompson Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Elleray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hartleys Lawyers

Orders

1. The Mother and Father have equal shared parental responsibility for the children, X, born … 2009, and Y, born … 2011.

2. The children live with the Father as follows:

   a)In week one, from the conclusion of school (or 3:30pm) Thursday until the commencement of school Tuesday (or 3:30pm if a non-school day).

   b)On Father’s Day, in the event the children are not ordinarily spending time with the Father, from 3:00pm on the Saturday immediately prior to Father’s Day until 5:00pm on Father’s Day.

   c)For one half of each Victorian gazetted term school holiday periods, at times to be agreed in writing in advance and failing agreement:

   i.From the conclusion of school on the last day of term until 5:00pm on the middle Saturday in even numbered years; and

   ii.From 10:00am on the middle Saturday until 5:00pm on the last Sunday in odd numbered years.

   d)For Christmas, at times to be agreed and failing agreement in writing in advance:

   i.From 3:00pm Christmas Eve until 3:00pm Christmas Day in 2018 and each alternate year thereafter; and

   ii.From 3:00pm Christmas Day until 3:00pm Boxing Day in 2019 and each alternate year thereafter.

   e)For half of the long summer school holiday periods, such time to be exercised on a week-about basis, with the children to be in the care of the Father in the first week of the long summer school holiday period in 2018/2019 and each alternate year thereafter and in the care of the Mother in the first week of the long summer school holiday period in 2019/2020 and each alternate year thereafter, at times to be agreed and failing agreement, from the conclusion of school (or 4:00pm Friday if a non-school day) on the first Friday of the long summer school holidays until 5:00pm on the following Friday, such time to conclude and the children to be back in the care of the Mother no later than 5:00pm on the day that falls two clear days prior to the new school year commencing.

   f)On the children’s birthdays, at times to be agreed in writing in advance and failing agreement:

   i.From the conclusion of school until 6:00pm if a school day; and

   ii.From 9:00am until 2:00pm if a non-school day.

   g)On the Father’s birthday, at times to be agreed in writing in advance and failing agreement:

   i.From the conclusion of school until 6:00pm if a school day; and

   ii.From 9:00am until 5:00pm if a non-school day.

   h)For Easter, at times to be agreed in writing in advance and failing agreement:

   i.From 5:00pm Easter Saturday until 5:00pm Easter Monday in 2019 and each alternate year thereafter; and

   ii.From 5:00pm Holy Thursday until 5:00pm Easter Saturday in 2020 and each alternate year thereafter.

   i)Such further or other times as may be agreed in writing in advance between the parties from time to time.

3. The children live with the Mother at all other times.

4. The Mother be restrained by injunction from relocating the children’s residence from a distance exceeding 20km from either the B Town Post Office or the C Town Post Office at her option.

5. Notwithstanding the arrangements detailed in Order 2 above, the children be in the care of the Mother on the following occasions:

   a)For Christmas, at times to be agreed in writing in advance and failing agreement

   i.From 3:00pm Christmas Day until 3:00pm Boxing Day in 2018 and each alternate year thereafter; and

   ii.From 3:00pm Christmas Eve until 3:00pm Christmas Day in 2019 and each alternate year thereafter.

   b)For Easter, at times to be agreed in writing in advance and failing agreement:

   i.From 5:00pm Holy Thursday until 5:00pm Easter Saturday in 2019 and each alternate year thereafter; and

   ii.From 5:00pm Easter Saturday until 5:00pm Easter Monday in 2020 and each alternate year thereafter.

   c)For Mother’s Day, at times to be agreed in writing in advance and failing agreement, from 3:00pm on the Saturday immediately prior to Mother’s Day until 5:00pm on Mother’s Day.

   d)On the children’s birthdays and any other children’s siblings in the Mother’s care, at times to be agreed in writing in advance and failing agreement:

   i.From the conclusion of school until 6:00pm if a school day; and

   ii.From 9:00am until 2:00pm if a non-school day.

   e)On the Mother’s birthday, at times to be agreed in writing in advance and failing agreement:

   i.From the conclusion of school until 7:00pm if a school day; and

   ii.From 9:00am until 5:00pm if a non-school day.

   f)Such further or other times as may be agreed in writing in advance between the parties from time to time.

6. Handover for the purpose of time occur at the children’s school and if a non-school day, handover occur at the B Town Police Station during school term and C Town Police Station during school holidays.

7. The Mother and Father each keep the other informed at all times of any significant medical injury or illness affecting the children when in the care of each of them, including providing the other parent with the name of any doctors, hospitals or other allied health professionals that the children may have attended upon as a result and further provided that such professionals are authorised to discuss the attendances with the other parent.

8. The parent in whose care the children are not in communicate with the children by telephone each Sunday between 6:00pm and 6:30pm, with the parent who does not have the children in their care to initiate the call to the other parent and the other parent to provide all such reasonable assistance to enable telephone communication to occur.

9. The Mother and Father each be at liberty to attend all extra-curricular activities or events to which the children may participate in from time to time.

10. The Mother and Father each be at liberty at their respective costs to obtain a copy of all school reports, newsletters, photograph order forms and any other information or documents ordinarily provided to parents by the children’s schools.

11. The Mother and Father each be at liberty to attend all school events and functions, including but not limited to assemblies, sports days, parent teacher interviews and any other events or functions to which parents are ordinarily invited to attend.

12. The Mother and Father each keep the other informed at all times of their residential address and contact telephone numbers and notify the other within 24 hours of any change thereto.

13. Each party be and are hereby restrained by injunction from:

    a)Consuming any illicit substances and/or any prescribed medication save in accordance with such prescription and/or alcohol to excess for 24 hours prior to and during all periods of time spent with the children and from bringing the children into contact with any other person who has done so; and

    b)Insulting, belittling, degrading or otherwise denigrating the other parent or a member of their immediate household in the presence and/or hearing of the children or either of them or from permitting any other person to do so; and

    c)Using any form of physical chastisement on the children or either of them; and

    d)Exposing the children of either of them to family violence in any form.

14. The Father shall comply within 48 hours of any request for a supervised urine drug screen from the Mother’s Solicitors and provide such Solicitors with the results thereof forthwith upon receipt.

15. The Mother’s Solicitors shall not request more than two such screens per four week period.

16. If the Father tests positive to illicit substances the Mother shall be entitled to suspend the live with the Father Orders until a clean supervised screen is provided.

17. Orders 14 to 16 shall commence at the beginning of the 2019 School Year and cease at the start of the 2020 School Year.

18. Should the Father’s prescribed medication regime be altered by an appropriately qualified medical practitioner he shall provide the Mother’s Solicitors with details of such changes forthwith upon them being implemented.

19. The Father shall continue his counselling at C Health B Town and follow all reasonable recommendations until it is determined it is no longer required.

20. The parents shall each forthwith attend a Parenting Orders program at the Region E Family Care C Town and provide written proof of completion to the other party or the other party’s Solicitor as soon as practicable.

21. No later than 12 months prior to the Child X commencing Secondary Schooling (anticipated to be 2021), each party shall make a proposal to the other, in writing, as to where the children should attend Secondary School.

22. If the parties are unable to agree as to where the children attend Secondary School within two months of exchanging proposals, then the Applicant initiate a mediation with a family mediation service to address the dispute in relation to Secondary School.

23. The parents be at liberty to provide to the Father’s Drug and Alcohol Counsellors (currently C Health B Town) copies of his Psychiatric Assessment by Dr F dated 30 October 2017 and the Family Report dated 18 November 2018.

24. Pursuant to s.65DA(2) and s.62B 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 the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

25. The order appointing the Independent Children’s Lawyer be discharged.

NOTATIONS:

A.That within seven days of the date of these Orders the Father provide to the Mother the original photograph albums of the children’s baby photographs

B.That within seven days of the date of these orders the Mother provide to the Father the original school photograph albums from 2018.

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 Victoria & Bell 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 MELBOURNE

FILE NUMBER: AYC 84 of 2017

Mr Victoria

Applicant

And

Ms Bell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parties have presented Consent Terms which are also supported by the Independent Children's Lawyer (‘ICL’).  It is fundamental that even in making consent orders that the best interests of a child are paramount and that pursuant to s 60CG of the Act, the Court is to ensure, to the extent that it is consistent with the paramountcy principle that children are not exposed to an unacceptable risk of violence.  These are positive duties which are placed upon the Court.

2. Best interests of children are determined by the s 60CC considerations although not all of the considerations are mandatory when considering making consent orders (see s 60CC(5)). 

3. In this case the predominant considerations for determining whether or not the consent terms are, or are not, in the best interests of X and Y is a consideration of the primary considerations.  This is a case in which there is alleged an extensive history of family violence, and in fact admitted to some degree, a history of family violence perpetrated by the Father upon the Mother.  If the Mother's case was accepted at its highest then there have been some extreme examples of family violence.  At the same time there is also strong evidence to demonstrate that the children have positive relationships with both of their parents and will gain considerably from having meaningful relationship with their Father.  It should be noted that the parents’ combined position is that the primary parent that the children shall live with will be the Mother. 

4. The arrangements proposed by the parents provide for a 9/5 split across the fortnight, provide for important days to be spent between the parent and the children and provide for a sharing of school holidays.  In short, they provide for substantial and significant time.

5. The orders also provide for equal shared parental responsibility and in that context the parties have negotiated a mechanism to deal with what appears to be the most likely area of contention for them, which is the identity of the school once the boys reach high school.

6. Turning back to the primary considerations, the case involves then a balance of the need to protect the children from the effects of family violence and the harm that may be caused to them either by having family violence inflicted upon them or being exposed to family violence.  It is axiomatic that if children are exposed to family violence or suffer direct family violence upon them it is something which damages them, not only in their childhood, but throughout their whole lives, or at least has the potential to do so.  In that respect the issue of exposure to family violence is a most serious matter.  At the same time, the benefits of meaningful relationship are also matters that can echo throughout a child's life.  It is the balance of these two matters which falls to be struck in relation to these consent orders. 

7. The fact that each of the parties supports the terms indicates strongly that they are in the children's best interests.  The fact that the Family Report writer has noted the nature of the relationships and the benefits that the children will gain from each of those relationships also speak strongly in support of the consent terms. 

8. The matter which potentially tells against them, but which does not stop them being made in this instance, is the history of family violence alleged by the Mother.  The particular matters that have been identified both by counsel for the Father, counsel for the Mother and counsel for the ICL, which have been the subject of the last half hour’s interchange, sufficiently strike the balance in favour of the making of the orders as they deal with particular safeguards and why those safeguards are helpful in this particular instance.  Those safeguards include safeguards that relate to the Father's ingestion of illicit substances, involve his ongoing therapeutic treatment, involve the parties receiving support for how they might interact with each other in the future.  The more recent history between the parties, which has seen an abatement of the physical violence alleged against the Father upon the Mother, and isolated examples of relatively minor breaches of intervention orders, are indicative that the risk of exposure to family violence has fallen sharply since the parties have brought a clean break to their relationship.  It may be noted that any further instance of exposure to family violence may well see a complete change of the orders if such was to be litigated. However, at present the balance between those two factors with the particular protections that have been spoken to by the parties justifies the making of these orders as being made in the children's best interests.

9. I mark as exhibit C1 in the proceedings the terms provided by the parties and make orders in those terms, noting that the solicitor for the Mother will provide an electronic typescript within 48 hours to the Court.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 3 December 2018.

Associate:

Date:  6 December 2018.