Vincent and Waldock

[2011] FamCA 294

FAMILY COURT OF AUSTRALIA

VINCENT & WALDOCK [2011] FamCA 294

FAMILY LAW – CHILDREN – With whom a child lives

APPLICANT: Ms Vincent

RESPONDENT: Mr Waldock

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11517 of 2008

DATE DELIVERED: 22 March 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 22 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Smith

SOLICITOR FOR THE APPLICANT: Arch Sutton

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Grigg

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Perry Weston

Orders

BY THE COURT NOT BY CONSENT, IT IS ORDERED

1. That each parent shall have sole parental responsibility for the child living with them pursuant to these Orders.

BY CONSENT IT IS ORDERED

1. That the child J born … May 1996 live with the Father.

2. That the child R born … October 1998 live with the Mother.

3. That the Mother spend time with and communicate with the child J as follows:

4. On each alternate weekend from 6.15pm Friday until 5.00pm Sunday;

5. For half of each school term holiday by agreement or in default of agreement from the conclusion of school on whichever is the latest term day of either school until 6.00pm on the middle Saturday of such holidays;

6. For half of the Christmas school holidays by agreement or in default of agreement on a week about basis commencing at 6.00pm on the day school finishes with changeovers to be at 6.00pm on that day of the week in each week of the Christmas school holidays save that the children will be returned to the parent with whom they live at 6.00pm on the day two clear days prior to school recommencing;

7. On the Mother's birthday and the children's birthdays should the children or either of them not be in her care on that day, from 6.00pm until 8.30pm should that day be a school day or from 10.00am until 3.00pm should that day be a holiday or non-school day;

8. On Mother's Day from 10.00am until 6.00pm should same fall on a day when the children are not otherwise in her care;

9. From 6.00pm on Christmas Eve until 3.00pm on Christmas Day in 2010 and each alternate year thereafter;

10. From 3.00pm on Christmas Day until 6.00pm on Boxing Day in 2011 and each alternate year thereafter;

11. By telephone between 6.00pm and 7.00pm each Monday or such other weekday as is agreed between the parties, with the Mother to initiate the telephone calls to the Father's mobile and the Father to facilitate to such telephone calls and to ensure that his mobile telephone is switched on and the battery charged;

12. At such further and other times as is mutually agreeable between the parties.

13. That the Father spend time with and communicate with the child R as follows:

14. On each alternate weekend from 6.15pm Friday until 5.00pm Sunday;

15. For half of each school term holiday by agreement or in default of agreement from  6.00pm on the middle Saturday of such holidays until 6.00pm on the final Sunday of such holidays;

16. For half of the Christmas school holidays by agreement or in default of agreement on a week about basis commencing at 6.00pm on the day seven days after school finishes with changeovers to be at 6.00pm on that day of the week in each week of the Christmas school holidays save that the children will be returned to the parent with whom they live at 6.00pm on the day two clear days prior to school recommencing;

17. On the Father's birthday and the children's birthdays should the children or either of them not be in his care on that day, from 6.00pm until 8.30pm should that day be a school day or from 10.00am until 3.00pm should that day be a holiday or non-school day;

18. On Father's Day from 10.00am until 6.00pm should same fall on a day when the children are not otherwise in his care;

19. From 6.00pm on Christmas Eve until 3.00pm on Christmas Day in 2011 and each alternate year thereafter;

20. From 3.00pm on Christmas Day until 6.00pm on Boxing Day in 2010 and each alternate year thereafter;

21. By telephone between 6.00pm and 7.00pm each Wednesday or such other weekday as is agreed between the parties, with the Father to initiate the telephone calls to the Mother's mobile and the Mother to facilitate to such telephone calls and to ensure that her mobile telephone is switched on and the battery charged;

22. At such further and other times as is mutually agreeable between the parties.

23. That for purposes of the parties spending time with the children, all changeovers shall take place outside the L Police Station and in the event either party moves from their present address outside a manned Police Station as near as possible to midway between their respective addresses.

24. That time spent with the children pursuant to paragraphs 4(a) and 5(a) be suspended during school holiday periods.

25. The Mother shall forthwith enrol in, undertake and complete a recognised Parenting After Separation Course.

26. That each of the parties be restrained from denigrating the other party in the presence of or within the hearing of the children or allowing any other person to do so.

27. That each party keep the other informed of their current residential address and telephone number at all times.

28. That the Mother and Father forthwith authorise the children's schools to make copies of the children's school reports available to both parties and to forward or make available to both parties all school newsletters, notices and arrangements for parent teacher interviews.

29. That the mother and Father each notify the other party as soon as practicable of any illness or injury suffered by the children or either of them whilst in their care that requires the attention of a medical practitioner.

30. In the event that a "time with" event does not occur on any weekend, the party deprived of time shall be entitled to make up time on the following weekend.

31. That the parties be restrained by injunction from discussing the issues in the matter in the presence or hearing of the children.

32. Pursuant to s.65DA(2) and s.62B, 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.

33. That otherwise all parenting applications shall be dismissed.

34. That the ICL shall be is hereby discharged.

35. That any reasons for judgment given this day shall be transcribed and retained on the Court file.

NOTATION

1. It is the intention of these Orders that the children spend each weekend and whole of each school holiday period together.

2. That both parties will use their best endeavours to facilitate the operation of these Orders.

3. The parties acknowledge that should either of the children wish to return home during "time with" they will facilitate the child returning home.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11517 of 2008

Ms Vincent

Applicant

And

Mr Waldock

Respondent

REASONS FOR JUDGMENT

1. I shall give brief reasons on one remaining issue.

2. Ms Vincent and Mr Waldock have agreed most of the parenting orders in relation to J who is nearly 15 and is going to continue living with his father, and R who is 12½ and is going to continue living with her mother, with a structure that would see the children together at weekends and in school holidays. 

3. This case started before me back in September 2009 and the delay in reaching this stage for a final hearing was deliberate.  As the children were split between households, and not even seeing each other when the case first started before me, it was agreed that the family should undertake intense family therapy with an experienced therapist, Dr N.

4. Ultimately, after more than a year, Dr N’s view was that no further therapy could bridge the gap between households or between parents.  Her view ultimately was that each child should remain where they were then living. 

5. The issue that remains today is the only issue about which there is no agreement.  It relates to the parental responsibility for the children.  The mother, Ms Vincent, says that each parent should have sole responsibility for the child in their care.  The father, Mr Waldock, who is unrepresented, has argued that there should be equal shared responsibility in relation to each of the children.  The ICL, through counsel, has argued that the parental responsibility should be shared, except in relation to issues of education and medical care, where it should reside in the parent who has the particular child living with them.

6. Section 61DA(2) of the Family Law Act sets out a presumption of equal shared parental responsibility.  That presumption does not apply in specific cases of violence or abuse.  The presumption of equal shared parental responsibility does in fact apply in this case, but it can be rebutted by evidence that it is not in the best interests of a child for shared parental responsibility. 

7. It was agreed in this case to proceed on this one issue on the papers and by way of submissions.  I am satisfied having read all the material and listened to the submissions that the presumption in favour of equal shared parental responsibility is rebutted.  There is ample evidence for that.  It can be briefly summarised. 

8. Each expert that has been involved with the family – that is Dr N and two different family consultants, Mr U and Ms H – have each observed the very high degree of hostility between the parents, and the parents’ incapacity to communicate at all or at least to communicate in any civil or meaningful way.

9. Mr U in his Issues’ Assessment, noted that each parent blamed the other but neither appeared to make any genuine attempt to work together. 

10. Ms H, in her Family Report, said that neither parent took responsibility for their own behaviour.  Each blamed the other.  They had no effective communication strategy and a co-operative parenting alliance was, in her professional opinion, “highly unlikely”. 

11. Dr U, after the extensive family therapy, went so far as to say that each parent was creating issues to invoke the loyalty of the child who was living with them.  She concluded that the “best solution” was that each parent have sole responsibility for the child in their care. 

12. There was further evidence from the children themselves as to the stress they feel from the conflict.  As Mr Grigg reminded everyone this morning, J told one report writer, in what I would describe as a heartfelt and age-appropriately expressed way, that he just wants “the crap” to stop.  Sadly, it hasn’t.

13. Further, the affidavit material relied on by the father attaches voluminous letters and emails back and forth between the parents and/or legal representatives documenting complaints, discussion, and disagreement about issues large and small.  It shows that to have these two people tied together in the decision-making process is simply not a practical or a reasonable way to make decisions, or to provide certainty and calm for the children or for the adults just to get on with reasonable lives.

14. Mr Waldock’s case that each parent should have input in relation to each child, particularly in light of his concerns about the mother’s high-handed unilateral decisions in relation to R’s change of school this year, and a decision that appears to have been against the educator’s advice, are completely understandable concerns.  So is the Independent Children’s Lawyer’s desire to give the message to the parties that overall they are sharing responsibility for their children, but that the most vexing issues of education and health are removed. 

15. But I need to consider the best interests of the children, in the broader sense, guided specifically by the matters in section 60CC of the Act.  I am satisfied that in order to promote a meaningful relationship for each child with each parent, to protect them from the well documented harm of ongoing conflict, to respect their clearly expressed wishes, to promote their continuing relationship with each-other, and to enhance each parent’s capacity to get on with the task of parenting the child, the wind needs to be taken out of the sails of this dispute.  That consideration on balance overrides all the countervailing arguments in favour of both parents’ involvement when it comes to these children’s best interests, so that each shall make decisions for the child living in their household.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 30 March 2011.

Associate: 

Date:  30 March 2011