WELLER & WELLER

[2018] FamCA 808

FAMILY COURT OF AUSTRALIA

WELLER & WELLER [2018] FamCA 808

FAMILY LAW – CHILDREN – Parenting – Orders made on an undefended basis.

APPLICANT: Mr Weller

RESPONDENT: Ms Weller

INDEPENDENT CHILDREN’S LAWYER: Ms J. Lilley

FILE NUMBER: BRC 2770 of 2017

DATE DELIVERED: 2 October 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 2 October 2018

REPRESENTATION

FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr T. E

SOLICITOR FOR THE RESPONDENT: Rice Naughton McCarthy Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. All previous parenting Orders regarding the child X born … 2006 (“the child”) are discharged.

Parental Responsibility

1. The Mother is to have sole parental responsibility for all major long term issues affecting the child including but not limited to:-

   (a)education, both current and future;

   (b)religious and cultural upbringing;

   (c)health including allied professional care;

   (d)name; and

   (e)living arrangements.

2. Each of the parents have sole responsibility for decisions relating to the day to day care, welfare and development of the child during periods when the child is living with or spending time with them.

Living Arrangements

1. The child is to live with the Mother and spend time with the Father as may be mutually agreed upon in writing by the Mother and the Father.

2. The Mother will not consume alcohol to excess when the child is in her care.

Communication

1. All communication between the parents about parenting matters will be in writing by email, save for in emergencies when communication is to be by telephone.

2. The parents will keep each other informed of their current address, telephone (preferably mobile) and email contact details, and will notify the other of any change to those details within 24 hours of such change.

3. The parents will communicate with each other directly about parenting matters, and not via the child.

4. Each parent will speak of the other parent respectfully and will not denigrate or insult the other parent in the child’s presence or hearing, and each will use their best endeavours to ensure that other persons do not denigrate or insult the other parent or discuss the other party’s mental health in the child’s presence or hearing.

5. The Mother will facilitate telephone and email communication between the child and the Father at the request of the child. 

6. The Father will facilitate telephone and email communication between the child and the Mother at the request of the child.

Mother’s Therapeutic Counselling and Treatment

1. The Mother will continue to attend upon her treating psychologist, currently Dr B, for as long as is recommended by that practitioner, with the aim to enhance the Mother’s understanding of how her own emotional needs and problems may be impacting on the child.

2. The Mother will continue to attend on her treating psychiatrist, currently Dr C, for as long as is recommended by that practitioner.

3. The Mother will provide a copy of this sealed Order and the sealed Affidavits of Dr D filed 2 August 2018 and Mr E filed 15 December 2017 to each of Dr B and Dr C and any substituted practitioners on whom she attends for psychological or psychiatric treatment within five (5) days of commencing to attend.

Child’s Therapeutic Counselling

1. The Mother will facilitate the child’s attendance upon a child psychologist for so long as is recommended by that child psychologist.

Authorities/Notice

1. The parent with the care of the child at any time when he is involved in a serious medical or other emergency will notify the other by telephone and within two (2) hours of such emergency, and will provide details and particulars of the incident and advise as to any hospitalisation.

2. This Order is authority for the child’s school and for any medical and allied practitioners who treat the child, to provide information to each parent about the child (at the requesting parent’s own expense, if any) and for each parent to request to be provided by the child’s school and any medical and allied practitioners, with documents about the child (at the requesting parent’s own expense, if any), and to discuss the child with each parent.

3. The parents have leave to provide a copy of this Order to the child’s school and any treating medical and allied practitioners upon whom the child attends.

Overseas Travel

1. The Mother is permitted to apply for an Australian travel document for the child, with both parents to do all things and sign all documents as are necessary to apply for or to renew the Australian travel document in the child’s name.

2. The Mother will retain said travel document for the child, but will release this to the Father as agreed between the Mother and the Father so as to facilitate the Father’s international travel with the child as may be agreed between the Mother and the Father in writing, with the Father to return the document to the Mother within one week of his return to Australia.

3. Neither parent is to take the child to any country which is not a party to the Hague Convention unless specifically agreed between the parties in writing.

AND IT IS NOTED

1. The applicant father filed a Notice of Discontinuance on 7 September 2018.

2. The mother consented to the order at paragraph 5 herein.

3. That pursuant to s 62B of the Family Law Act1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

4. That pursuant to s 65DA(2) of the Family Law Act1975 (Cth), the particulars of the obligations these order create and the particulars of the consequences that may follow if a person contravenes these order are set out in the Fact Sheet, attached hereto and these particulars are included in these order.

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 Weller & Weller 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 BRISBANE

FILE NUMBER: BRC 2770 of 2017

Mr Weller

Applicant

And

Ms Weller

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Weller and Ms Weller have one child, X, aged 12 years. For much of the child’s life he has been the focus of conflict between his parents. The father has now withdrawn altogether from the child’s life and indicated his intention to take no further part in any court proceedings.  

2. Thus, the matter proceeds before me on an undefended basis.

3. The mother proposes that the child continue to live with her; that she have sole parental responsibility for major long term issues and spend time with his father as agreed. Her proposal is supported by the independent children’s lawyer.

Applicable Legal principles

1. Any application for a parenting order engages Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[1]

   [1] See Family Law Act 1975 (Cth) s 65D.

2. The objects and principles of Part VII of the Act are set out in s 60B(1) and (2) and those sections make clear that the Court is concerned with children’s rights to be, among other things, cared for by both parents when it is safe for that to occur.

3. In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration (s 60CA) although the best interests of the child can only be considered within the factual matrix presented to the Court.

4. The best interests of the child are determined by reference to primary considerations, namely, the usual benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child etc. (s 60CC). In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

5. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).

6. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

7. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

Background

1. By way of brief background I note that Mr Weller and Ms Weller were married in 2000 and divorced on 28 October 2011.  X is their only child.

2. Mr Waldon is forty-one years old and a professional.  He lives with his partner, Ms F.  Ms F has two children, Y aged 15 and Z aged 11. 

3. Ms Weller is forty years old and unemployed.  She has been in receipt of an income insurance payment since 2015 when she ceased work due to being diagnosed with sleep apnoea and potential hypersomnia.  The mother has a history of mental health issues and alcohol misuse.  The orders that are proposed by her include a requirement that she continue to attend upon her treating psychologist and psychiatrist for as long as is recommended by those practitioners.  She also consents to the inclusion of an order that she will not consume alcohol to excess when the child is in her care.

4. On 31 May 2018 the mother attended upon Dr D.  In the report prepared by Dr D he opines that the mother’s complex mental health issues are not impacting on her ability to care for the child or encourage the child’s relationship with his father. 

application of legal principles

1. The child is currently estranged from his father and the relationship has been fraught for the last couple of years. The father describes the very difficult nature of their relationship in his most recent affidavit.

2. The father’s act in filing a Notice of Discontinuance offers a circuit breaker that will enable the child to continue to live with his mother, which is his wish, but leaves open the possibility in the future of a relationship between father and son which would be preferable for the child’s long term functioning.

3. The parents have no capacity to make joint decisions about the child. Indeed the father has blocked communication from the mother or her solicitor.

4. While not optimal, the proposed order will bring an end to the litigation and enable the child to move on with his life. He will have the assistance of his own therapist should that be of assistance to him.

5. It is to be hoped that the intervention sought by the mother for her own psychological functioning can assist her in changing what has been described as her ‘enmeshed’ relationship with her son.

6. I consider the proposed parenting order to be proper in the circumstances of this particular case.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 8 October 2018.

Associate: 

Date: