WESLEY & HUNT

[2011] FamCA 161

FAMILY COURT OF AUSTRALIA

WESLEY & HUNT [2011] FamCA 161

FAMILY LAW – CHILDREN

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Wesley

RESPONDENT: Ms Hunt

INDEPENDENT CHILDREN’S LAWYER: Ms Dart

FILE NUMBER: BRC 7377 of 2008

DATE DELIVERED: 5 April 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 5 April 2011

REPRESENTATION

THE APPLICANT: No appearance

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dart, Legal Aid Queensland, Brisbane

Orders

IT IS ORDERED BY CONSENT OF THE MOTHER AND THE INDEPENDENT CHILDREN’S LAWYER UNTIL FURTHER ORDER THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

IT IS ORDERED THAT

1. The Independent Children’s Lawyer shall cause a perfected copy of the minutes of consent to be filed in this Court by email to the Associate to Justice Murphy by 4.00pm on 5 April 2011, and copied contemporaneously to the mother and the father.

2. The Independent Children’s Lawyer shall effect service upon the father of the minutes of consent together with a covering letter outlining, in broad terms, the outcome of the proceedings on 5 April 2011 and the Honourable Justice Murphy’s reasons, by all of the following means:

   (a)     via email at the father’s last know email address;

   (b)     by ordinary post at the father’s address for service;

   (c)     by registered post at the father’s address for service.

3. The father be at liberty to relist this matter on the giving of 48 hours notice on or before 4.00pm on 3 May 2011.

4. In the event that the father fails to seek to relist the matter in accordance with the previous paragraph of these orders, the Independent Children’s Lawyer shall file and serve an Affidavit of Service deposing to service in accordance with paragraph 4(a), (b) and (c) by 4pm on 9 May 2011.

5. Failing further or other order:

   (a)The interim orders made by consent today shall be final as and from 4.00pm on 11 May 2011.

   (b)The Independent Children’s Lawyer shall be discharged as and from 4.00pm on 11 May 2011.

   (c)All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

   (d)All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS FURTHER ORDERED THAT

1. 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 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.

“Exhibit 1”
Minutes of Consent

1. That the children, [M] born […] November 2002 and [R] born […] February 2006, live with their mother.

2. That the parties have equal shared parental responsibility for the children.

3. That the father spend time and communicate with the children at all reasonable times as may be agreed between the parties and failing agreement as follows:

   3.1.     From 10am-4pm on two alternate Saturdays; and then

   3.2.     From 9am-5pm on two alternate Saturdays; and then

   3.3.     From 8am – 5pm each alternate Saturday; and

   3.4.     On Fathers’ Day from 10.00am – 5.00pm;

   3.5.     By telephone, letter and email at reasonable times.

4. That the children spend time and communicate with the mother on Mothers’ Day from 9.00am – 5.00pm.

5. That the father collect the children from the mother’s home at the commencement of his time and return them to the mothers’ home at [C] at the conclusion of his time.

6. That the father give the mother at least 48 hours notice of his intention to exercise time pursuant to these orders.

7. That the father purchase a communication book in which the parties shall communicate regarding activities, events, health or other issues in relation to the children and the book shall travel with the children when they spend time with each parent.

8. That the parents authorise the children’s schools to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at that parent’s expense).

9. That either parent be at liberty to attend school, sporting or other events, or specialist medical appointments that the children may be participating in outside of their time with the children.

10. That each party shall notify the other as soon as practicable and within two (2) hours in the event of serious illness or injury involving the children and inform the other parent of where the child/ren are being treated.

11. That the children continue to attend and remain enrolled at the [C] State Primary School unless otherwise agreed between the parties.

12. That each parent refrain from denigrating the other parent in the presence or hearing of the children, or allowing any other person to do so.

13. That the parties keep each other informed of their residential address and contact telephone numbers at all times and notify the other parent within 48 hours of any change in details.

14. That neither party remove the children from Australia without the written consent of the other party.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7377 of 2008

Mr Wesley

Applicant

And

Ms Hunt

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter commenced in November of 2006 with an application by the father in respect of the two children of his relationship with the mother:  M, born in November 2002, who is now eight, and R, born in February 2006 who is now five. 

2. The progress of this matter through the court has been chequered.  In its most recent form, a number of appearances by the father in the absence of the mother were marked by the father indicating that he was in negotiations with the mother with a view to arriving at orders by consent in respect of the children.  Ultimately, on 8 December 2010 I made orders by consent. The mother appeared by telephone. 

3. At all relevant times during the progress of the matter an Independent Children’s Lawyer has been engaged.  The Independent Children’s Lawyer indicated her consent to the orders proposed by the parties on 8 December. 

4. On that occasion, in light of the yet further intimation by the father that there was an intention to hold further negotiations with the mother with a view to reaching final consent orders, I ordered:

   In the event that the parties reach agreement, they shall be at liberty to forward minutes of consent by way of joint communication forwarded through the Independent Children’s Lawyer to the associate to Murphy J by email to […]@familycourt.gov.au attaching a copy of the minutes of consent, and if considered appropriate, such orders shall be made by consent in chambers without the necessity of any appearance by the parties and any future dates in respect of such orders will be vacated. 

5. In the event that no such agreement was reached I adjourned the matter to the Magellan directions list today. 

6. Today, unusually, the father does not appear. The mother and the Independent Children’s Lawyer each appear; in the mother's case in person.  The court is today informed by the Independent Children’s Lawyer that mail addressed by her to the father has been returned marked "Return to Sender".  There has been no telephone or other communication between the mother and father since 8 December 2010, (noting that on that occasion the communication occurred only whilst the mother appeared by telephone in court). 

7. I am told by the mother from the bar table today that the father has not exercised time with the children since about Father's Day last year;  that is, for about six months or so. 

8. Today the mother and the Independent Children’s Lawyer propose orders.  Those orders effectively mirror the orders made by consent on 8 December save for a minor variation with respect to the changeover point.  In addition, minor variations to those orders are proposed by the mother and Independent Children’s Lawyer, namely the addition of an order that provides the father give the mother at least 48 hours notice of his intention to exercise time pursuant to the orders.  That proposed order, no doubt, reflects the fact that there has been no time between the father and the children for about six months. 

9. In addition, the mother and the Independent Children’s Lawyer propose a number of other orders.  In broad terms those orders essentially copy orders earlier sought by the self‑represented father, again with some minor variations but of no particular moment in terms of prejudice to the father.  The variations provide for the children's schools to authorise the receipt of reports and the like. 

10. Notwithstanding the fact that the orders are proposed with the consent of the mother and the Independent Children’s Lawyer and essentially mirror orders made earlier by me on 8 December and otherwise essentially copy orders sought by the father, the father has not as yet received notification of those orders in their current form or, as I understand it, notification that the mother and the Independent Children’s Lawyer are agreed that orders in that form should be made on a final basis. 

11. As against that important consideration, I reiterate that this matter has been alive since the end of 2006 and it commenced its life in this list on 9 September 2008.  In the intervening two and a half years there have been a number of appearances before this court.  It is undoubtedly the case that these proceedings should be brought to an end if for no other reason than that the children deserve certainty about the arrangements applicable to them.  So much is made clear, and mandatorily required of this court, by section 69ZN of the Act and by Division 12A more generally. 

12. By reference to the requirements of rule 10.15A of the Act, I note that this is a case in which allegations of abuse within the meaning of that rule have previously occurred. 

13. It ought be recorded that, as early as 13 November 2009 at a mention before me, a report had been received from Dr G, a consulting psychiatrist instructed by the Independent Children’s Lawyer.  Dr G reported that:

    The mother was no longer of the view that there was any unacceptable risk of sexual harm or abuse. 

14. The mother made it plain to Dr G that she recanted all such allegations. 

15. Those matters were taken up by me in short ex tempore reasons delivered by me on that date.  I said in those reasons that the submission by the mother’s then solicitor that she "recants the allegation" is a statement to be measured against the former statements made by her which might be indicative of a concern in that respect.  I said in those reasons:

    I understand it to mean that the information subsequently received by the mother from all sources including significantly, as it seems to me, input forming part of criminal proceedings, including the ultimate result that the Crown considered the evidence such as not to seek to proceed with those charges, as satisfying her that no unacceptable risk of the sort of harm specified is present. 

16. In those circumstances, then, it seems to me that the requirements of Rule 10.15A of the Act are satisfied.  I am, then, content to make orders by consent having had regard to that Rule. 

17. However, as I have indicated, the father has not had notification of those orders or the fact that orders were being sought on a final basis.  Notwithstanding the fact that the orders mirror earlier orders sought by him and are otherwise essentially in accordance with earlier orders made by the court, it seems to me that natural justice requires the father to receive notification of the orders that are being sought and the fact that the orders are being sought on a final basis. 

18. However, reference to section 69Z of the Act, and Division 12A more generally, points to that consideration being balanced against an important consideration in the best interests of the children;  namely, that these proceedings should be brought to an end as soon as possible. 

19. It seems to me that the interests of justice and the best interests of the children can be served by orders which will be made initially on an interim basis but which will become final after service of the orders on the father and consequent consent or inaction by him for a specified period of time.

20. I order accordingly.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 5 April 2011.

Associate: 

Date:  4 May 2011