FAMILY COURT OF AUSTRALIA
| WHITMAN & BURR | [2009] FamCA 233 |
| FAMILY LAW - CHILDREN - Best interests of child – Risk of emotional and physical harm – Risk of sexual harm - With whom a child lives - With whom a child spends time – Supervised contact - Views of the child FAMILY LAW - CHILDREN – Parental Responsibility – General obligations – Capacity to parent |
| Family Law Act 1975 (Cth) |
| AIF v AMS (1999) 199 CLR 160 Secretary, Department of Health and Community Services v. JWB & SMB (1992) 175 CLR 218 at 270-2 U v U (2002) 211 CLR 238 W v W (Abuse allegations; Unacceptable Risk) (2005) 34 FamLR 129; [2005] FamCA 892 W v W (2004) FamCA 1167 |
| APPLICANT: | Mr Whitman |
| RESPONDENT: | Ms Burr |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 6170 | of | 2007 |
| DATE DELIVERED: | 31 March 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 10 - 12 March 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lyons |
| SOLICITOR FOR THE APPLICANT: | Thynne & Macartney |
| RESPONDENT: | The Respondent appeared in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr George |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
ORDERS
UPON NOTING that the court has found that the presumption of equal shared parental responsibility is rebutted by reason of the best interests of the children C born … January, 1994 and D born … December, 1997
IT IS ORDERED THAT:
Parental Responsibility
The father shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (as amended)) in respect of both children, save that the father shall, prior to making the sole ultimate decision about any such issue:
(a)Use his best endeavours to advise the mother in writing of the decision intended to be made;
(b) Seek the mother’s written response in relation thereto;
(c)Consider, by reference to the best interests of the children, any such response prior to making any such decision;
(d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:
(a)Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the child;
(b)Any school which the child attends;
(c)The Director of any extra-curricular school or other activity in which the child is involved;
to provide to the other party such information as might reasonably be required about the child…
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- [2009] FamCA 233
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CaseChat Overview and Summary
The court found that the presumption of equal shared parental responsibility was rebutted due to the best interests of the children. Consequently, the father was granted sole parental responsibility for major long-term issues, with specific obligations to consult the mother in writing before making final decisions. The court also ordered that the children live with their father and established a detailed schedule for supervised time with their mother, which was to be borne equally by both parties. Further orders addressed communication between the parents and restrictions on the mother's contact with the children, including a prohibition on contact with her fiancé.
The court's reasoning focused on the paramount consideration of the children's best interests, which necessitated a departure from equal shared parental responsibility. The orders reflected a carefully calibrated approach to ensure the children's safety and well-being, including provisions for counselling and information sharing between parents. Restrictions were imposed on the mother's contact with the children and her fiancé until a specified date, after which some restrictions were to be discharged or modified. The Independent Children's Lawyer was directed to provide the judgment reasons to relevant professionals.
Orders
Orders of the court
UPON NOTING that the court has found that the presumption of equal shared parental responsibility is rebutted by reason of the best interests of the children C born … January, 1994 and D born … December, 1997
IT IS ORDERED THAT:
Parental Responsibility
1.
The father shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (as amended)) in respect of both children, save that the father shall, prior to making the sole ultimate decision about any such issue:
(a) Use his best endeavours to advise the mother in writing of the decision intended to be made;
(b) Seek the mother’s written response in relation thereto;
(c) Consider, by reference to the best interests of the children, any such response prior to making any such decision;
(d) Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
2.
Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:
(a) Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the child;
(b) Any school which the child attends;
(c) The Director of any extra-curricular school or other activity in which the child is involved;
to provide to the other party such information as might reasonably be required about the child together with any report, assessment or other such document provided to a parent in respect of the child.
3.
Each of the parties shall notify the other of any serious accident, illness or other emergency affecting the child as soon as reasonably possible after its occurrence.
4.
Each of the parties shall advise the other and keep the other advised of:
(a) Their residential address;
(b) Telephone numbers at which they and the child can be contacted;
(c) Any email address to which the child can have access;
and shall notify any changes in any such details within 48 hours.
5.
The father shall do all such things as might be required to have either or both of the children attend such counselling as might from time to time be recommended by their current counsellor, Ms P, psychologist, including any further or other counselling with such other appropriately qualified counsellor whom she might recommend.
Live With and Time
6.
The children shall live with their father.
7.
The children shall spend time with their mother at all such times as might be agreed between the parties in writing and failing further or other agreement as follows:
(a) Until 31 December 2009 supervised by the W Contact Centre:
(i) for not less than two hours, or for such longer duration to a maximum of 8 hours that the said centre might be able to accommodate, on either Saturday or Sunday each alternate week; and
(ii) Should the said contact centre be able to accommodate same, then, for a period of one hour after school, on either Monday or Friday each week.
commencing, respectively, on the first Saturday or Sunday and upon the first Monday or Friday upon which the said contact centre can accommodate each such period of time and respectively fortnightly and weekly thereafter.
(b) Until 31 March, 2010 each Saturday from 9.00am until 5.00pm commencing on the first Saturday on which time would have fallen in the sequence contemplated by Order 7(a) and weekly thereafter.
(c) From after school Friday 2 April, 2010 until before school Monday 5 April 2010 and between those times and on those days each alternate weekend thereafter save that time shall commence after school Thursday if Friday is a public holiday or pupil-free day and conclude before school on Tuesday if Monday is a public holiday or pupil-free day.
(d) The time provided for in the preceding paragraphs of this Order shall be suspended on those days coinciding with four weeks annual leave by the father PROVIDED THAT the father provides to the mother not less than two months written notice of those days of annual leave.
(e) As and from the June/July school holiday period in 2010, for one half of all Gazetted school holiday periods with the first half in 2010 and each alternate year thereafter and the second half in 2011 and each alternate year thereafter.
8.
The costs of supervision of time in accordance with these Orders shall be borne equally by the parties.
Communication and Restrictions
9.
Until 31 March, 2010 the mother shall:
(a) Take all such steps as are necessary so as to ensure that her fiancé, Mr H has no oral or written contact or communication with either of the children;
(b) Not contact the children whether by telephone, orally, by letter or e-mail save during any period of time previously provided for in these orders.
10.
As and from 1 April 2010:
(a) The restriction provided for at paragraph 9(a) of these Orders is discharged; and
(b) In respect of C, the restrictions provided for at paragraph 9(b) of these orders are discharged;
(c) In respect of D, the restrictions provided for at paragraph 9(b) of these orders are discharged such that the mother is at liberty to contact her by telephone not more than twice per week on days suitable to each but not before 8.30am and not after 8.30pm but otherwise the said restrictions shall remain until D turns 16.
11.
The Independent Children’s Lawyer shall provide a copy of the reasons for judgment in this matter to:
(a) Ms P and such other counsellor who she might recommend;
(b) The Director of the W Contact Centre or such other contact centre or individual supervisor appointed by them or agreed in accordance with these Orders
and the publication of same to those individuals is approved pursuant to s 121(9)(g) of the Family Law Act 1975 but no other publication of the reasons, or any other account of the proceedings by the parties, is approved.
12.
The Independent Children’s Lawyer is discharged upon the expiration of the appeal period in respect of these Orders if no Notice of Appeal is filed or, otherwise, the hearing of any appeal.
IT IS FURTHER ORDERED THAT
13.
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
14.
Following the expiration of the Appeal period, 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.
15.
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
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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