WALKER & MYER

[2012] FamCA 893

FAMILY COURT OF AUSTRALIA

WALKER & MYER [2012] FamCA 893

FAMILY LAW – CHILDREN – Best interests – Consent orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Walker

RESPONDENT: Mr Myer

INDEPENDENT CHILDREN’S LAWYER: Peter Lynch

FILE NUMBER: MLC 4403 of 2011

DATE DELIVERED: 21 September 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 21 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lovering

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kent-Hughes

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr James

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Peter Lynch

IT IS ORDERED BY CONSENT THAT

1. All previous parenting orders with respect to the children B born … August 2005 and C born … August 2007 (“the children”) be discharged.

2. The mother and father have equal shared parental responsibility for the children save that the mother have the sole parental responsibility in relation to the decision as to which school the children are enrolled provided the mother provide the father with prior written notice of any new school in which each of the children are enrolled.

3. The children live with the mother.

4. The children spend time and communicate with the father as follows:

   (a)Whilst the mother and children remain living in D Town, each alternate Sunday from 1.00 am to 5.30 pm commencing 30th September 2012 with changeover to take place inside D Town Police Station.

   (b)Upon the mother and children moving to live in Melbourne on each alternate Saturday from 10.00 am to 5.30 pm with supervised changeover to take place at E Street, Suburb F or to take place at such other venue as may be agreed in writing by the parties.

   (c)On Good Friday between 10.00 am and 5.30 pm, Christmas Day in even numbered years from 11.00 am to 3.00 pm, from 11.00 am to 3.00 pm on Christmas Eve in odd numbered years and at other times as agreed on the basis that changeover take place in accordance with paragraph 4(a) and 4(b).

   (d)On Father’s Day between 10.00 am to 5.30 pm.

5. The mother and father forthwith do all such acts and things and sign all necessary documents to apply for acceptance by the E Street, Suburb F service to supervise changeover pursuant to these Orders.

6. The mother and father keep the other advised at all times of their current residential address and landline telephone and mobile telephone numbers and any changes thereof.  The mother shall provide the father with 7 days prior written notice of changing residence from D Town to Melbourne and provide details of the same.

7. The father be and is hereby restrained from consuming alcohol for 24 hours before and whilst the children are in his care pursuant to these orders or exposing the children to persons excessively affected by alcohol. 

8. The mother be and is hereby restrained from being affected by alcohol to excess whilst the children are in her care pursuant to these Orders or exposing the children to persons excessively affected by alcohol.

9. Within 30 days of the making of these Orders the mother arrange for the child B attending upon the Child and Adolescent Mental Health Services or the Royal Children’s Hospital for assessment and treatment for any behavioural problems and comply with any reasonable directions to attend further.   A copy of the Family Report of Ms G dated 3 September 2012 and the Psychiatric Report of Dr H of 11 September 2012 to be provided to such service.

10. The mother and father be and are hereby restrained by themselves their servants and agents from denigrating the other parent, their parties or family members to the children or within the presence or hearing.

11. In the event of any illness or emergency involving the children the party with whom the children are being cared by shall notify the other parent as soon as practicable.

12. The father continue to attend upon Mr J of K Health for counselling and treatment as Mr J may reasonably direct.

13. The mother continue to attend for counselling with Mr L, Psychologist and he may reasonably direct or such other psychologist/counsellor Mr L refers the mother to for ongoing counselling when she relocates to Melbourne.

14. All extent applications otherwise be dismissed.

15. The appointment of the Independent Children's Lawyer be discharged.

16. 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.

AND THE COURT NOTES:

A.The parties agree that in the event that the father does not attend for 3 consecutive periods of time set out in these Orders without having provide the mother with prior reasonable excuse for failing to attend then the mother shall not thereafter be considered to have contravened these orders if she from that point of time does not attend at the appointed changeover time unless the father has provided not less than 48 hours written notice of his intention to resume spending time with the children.

B.Where changeover cannot occur at E Street the parties to exercise changeover at Suburb M Police Station.

C.The Department of Human Services (DOHS) have advised in their Report dated 20 September 2012 that they have investigated their matter and the DOHS do not intend to intervene in these proceedings.   

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4403 of 2011

Ms Walker

Applicant

And

Mr Myer

Respondent

REASONS FOR JUDGMENT

1. This matter has been listed before me for a final hearing commencing today and was listed for a five day hearing.  The matter was previously listed for Mention before me on 6 August 2012 and whilst the husband was represented by Counsel on that day, he did not appear.  He is represented by Mr Kent-Hughes of Counsel today, but has not appeared.  I now have a minute of proposed orders presented to me which have been prepared by the Independent Children’s Lawyer. The mother consents to the making of that order. 

2. I am advised by Mr Kent-Hughes that he has spoken to his client this morning on approximately three occasions but that he hasn’t had the opportunity to read the actual orders to his client as he has not been able to contact him again. However, he has also told me he had clear instructions in relation to the major issues which include parental responsibility, where the children should live and with whom, the issue of the children moving to Suburb M with their mother, the duration and frequency of the time he is to spend with the children and the details with respect to changeover at E Street Contact Service.  Given the history of this matter and in particular, in relation to the most recent letter that has been forwarded to the Court by the Department of Human Services dated 20 September 2012, it is clear that on 15 September 2012 the father attended at the changeover for the purposes of the time he spends with the children at the D Town Police Station under the influence of alcohol and on that basis the time he was to spend with the children did not proceed.

3. I am satisfied that the orders that are proposed are in the best interests of the children, and whilst I will not make them as consent orders because I am aware that the orders have not been specifically consented to in every detail, I am satisfied that the father is aware of the general intent of the orders.  In particular I am satisfied that they are in the children’s best interests and I propose to make those orders as orders of the Court.  I will make orders in accordance with the minute and those orders will be engrossed upon the provision of an electronic copy in the appropriate form by the solicitors for the applicant mother within seven days.  I note that this finalises the matter and it will be removed from the list of cases awaiting hearing.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 21 September 2012.

Associate: 

Date:  29 October 2012