FAMILY COURT OF AUSTRALIA
| WILSON & HOLMES AND ANOR | [2012] FamCA 757 |
| FAMILY LAW – CHILDREN - Sole Parental Responsibility – Where the relationship between the parents has been characterised by high levels of conflict and hostility - Where the parents have been unable to cooperatively parent – Best Interests – Where both parents have demonstrated parenting deficiencies - Where the children are attached to both parents and to their step-father – Where the mother has been the primary carer of the children – Change of primary residence – Where the mother and step-father have a history of psychiatric problems and drug use – Where the expert does not regard the step-father as a suitable role model – Where the mother has a history of remaining in violent relationships – Where the mother has self-harmed– Where the father lacks psychological and emotional sensitivity – Where the children presented to the expert with emotional dysregulation and behavioural dysfunction – Where the mother has been unable to assist the children to become emotionally regulated - Where the mother and step-father should initially spend limited time with the children to allow them to settle into living primarily with the father. |
| Family Law Act 1975 (Cth) |
| Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 MRR v GR (2010) 42 Fam LR 531 George & Radford (1976) FLC 90-060 Flanagan v Handcock (2001) FLC 93-074 Koldsjor & Addington [2009] FamCAFC21 |
| APPLICANT: | Mr Wilson |
| 1st RESPONDENT: | Ms Holmes |
| 2nd RESPONDENT: | Mr N Holmes |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Quinn & Associates, Solicitors |
| FILE NUMBER: | PAC | 3158 | of | 2007 |
| DATE DELIVERED: | 4 September 2012 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 20, 21, 22 & 23 August 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Friedlander |
| FOR THE 1ST & 2ND RESPONDENTS: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Nash |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Quinn & Associates, Solicitors |
Orders
That the following parenting orders are made in relation to the children Z born … April 2002 and T born … April 2005 (“the children”).
That all previous orders be discharged.
Parental Responsibility
That the father have sole parental responsibility for the children.
Live With
That save as set out below the children live with the father.
Time Spent
That for six months from the date of these orders (“the six month period”) the mother and the step-father Mr N Holmes spend supervised time with the children once each four weeks at a contact centre for a minimum of two hours commencing not sooner than 22 September 2012.
That all parties shall do all things necessary to fulfil the requirements of the H Contact Centre for supervised contact at the Centre and comply with all reasonable directions of the Centre staff.
Following the expiration of the six month period, and the children spending six periods of time with the mother at the Centre, the children shall spend time with the mother and the step-father as follows:-
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- Case
- [2012] FamCA 757
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific parenting arrangements for the children, including who would have parental responsibility, where the children would live, and the allocation of time between the parents. This involved establishing a framework for communication between the parties, managing school and medical information, and addressing specific arrangements for birthdays and holidays. The court also considered and made orders regarding injunctions to prevent denigration and the publication of proceedings, as well as the use of physical discipline.
Johnston J applied principles of the *Family Law Act 1975* (Cth) to make orders that prioritised the children's best interests. The reasoning involved a phased approach to contact, commencing with supervision and gradually transitioning to more extensive time, reflecting a cautious approach to the children's welfare. The court also imposed strict communication protocols, including SMS only for non-emergency matters and specific changeover procedures to minimise conflict. Injunctions were granted to protect the children from negative commentary and to maintain the children's surname as the father's. The court also made orders for the supervision and assistance of a Family Consultant to help the parties comply with the parenting orders.
The court ordered that the father have sole parental responsibility and that the children live with him. A detailed schedule for the mother and step-father to spend time with the children was established, commencing with supervised contact and progressing to unsupervised time. The application to change the children's surname was dismissed, and all parties were restrained from causing the children to have any surname other than the father's. The court also made orders for the involvement of a Family Consultant and for family therapy.
Orders
Orders of the court
1.
That the following parenting orders are made in relation to the children Z born … April 2002 and T born … April 2005 (“the children”).
2.
That all previous orders be discharged.
Parental Responsibility
3.
That the father have sole parental responsibility for the children.
Live With
4.
That save as set out below the children live with the father.
Time Spent
5.
That for six months from the date of these orders (“the six month period”) the mother and the step-father Mr N Holmes spend supervised time with the children once each four weeks at a contact centre for a minimum of two hours commencing not sooner than 22 September 2012.
6.
That all parties shall do all things necessary to fulfil the requirements of the H Contact Centre for supervised contact at the Centre and comply with all reasonable directions of the Centre staff.
7.
Following the expiration of the six month period, and the children spending six periods of time with the mother at the Centre, the children shall spend time with the mother and the step-father as follows:-
(a) On two alternate weekends from after school Friday to 5:00 pm Saturday.
(b) Thereafter each alternate weekend from after school Friday to before school on Monday, the mother or step-father to undertake collection and delivery.
School holidays
(c) From the end of term two of the 2013 school year for half of each school holiday period excluding the Christmas school holidays at times to be agreed between the parties or in the absence of agreement to commence at 5:00 pm on the day that the school term ends and to conclude at 5:00 pm on the day half way through the holidays.
(d) For the Christmas School holidays commencing in 2013 the Mother shall spend time with the children for two block periods with the first period of two weeks and one period of one week.
(e) For the purpose of these Orders, school holidays will be deemed to commence at 9:00 am on the day following the last day of school and conclude at 5:00 pm on the day before the commencement of school whether or not that day is a pupil-free day. After the conclusion of the school holiday period, the parent who spent time with the children during the first half of the school holidays will spend time with the children on the first weekend following the conclusion of school holidays.
(f) Such further or other times as agreed between the parties from time to time in writing.
Birthdays
(g) The children are to spend time with their mother and step-father on each of the children’s birthdays for a period of four hours as agreed between the parties and in the absence of agreement from 3.15 pm to 7.15 pm.
Special Days
(h) Notwithstanding any other Order herein the children are to spend Mother's Day with the mother and Father's Day with the father.
Changeover
8.
(a) If the children are with the father for the Mother's Day weekend the father is to deliver the children to the mother at E McDonald's on the east bound side of the motorway at 3:00 pm on the Saturday before Mother's Day. If the children are with the mother for the Father's Day weekend she is to deliver the children to the father at W McDonald's at 3:00 pm on the Saturday before Father's Day and to collect them from the father at E McDonald's on the east bound side of the motorway at 6:30 pm on Father's Day.
(b) All other non-school changeovers are to be at E McDonald’s on the east bound side of the motorway.
(c) For the purpose of changeover, at all relevant times, the parties are to meet inside the specified McDonald's restaurant and are restrained from approaching, acknowledging or speaking to the other party in the car park or outside the McDonald's restaurant. Further each party will do all things necessary to ensure that third parties, who are known to them, do not approach, acknowledge or speak to the other party except inside the specified McDonald's restaurant.
Communication
9.
The parties will communicate by SMS only and only for the purposes of confirming changeover details. If there is an emergency the parties may communicate by voice.
10.
That during the six month period the mother be at liberty to write to the children once per week and the father shall ensure that such letter be given to the children providing the contents of the letter will not cause distress to the children.
11.
That during the six month period the father will facilitate the children writing to the mother once per week and he will ensure that he posts the letter(s) to the Mother.
12.
Following the expiration of the six month period, the mother is to send a mobile telephone to the children and the mother is to telephone the children between 7.00 pm and 7.30 pm each Wednesday other than when the children are in her care and the father shall ensure the children’s privacy during such telephone communications.
Christmas
13.
That notwithstanding anything stated above, the father, the mother and the step-father shall each spend time with the children on each of the following days:
(a) for half of Christmas Day at times to be agreed or in the absence of agreement:-
(i) in 2013 and each odd year thereafter:
1. with the Mother and Step Father from 5:00 pm Christmas Eve until 2:00 pm Christmas Day.
2. with the Father from 2:00 pm Christmas Day until 5:00 pm Boxing day.
(ii) in 2014 and each even year thereafter:
3. with the Father from 5:00 pm Christmas Eve until 2:00 pm Christmas Day.
4. with the Mother and Step Father from 2:00 pm Christmas Day until 5:00 pm Boxing day.
School
14.
That the father shall irrevocably authorise any school attended by the children to provide direct to the mother copies of the children's school reports and any other material provided to parents by the school.
15.
That the father shall upon receiving notice of any school or extracurricular special event (including but not limited to concerts, parent teacher interviews, excursions and camps) forthwith provide the mother with details or a copy of the notification of such event.
Medical
16.
That each party shall forthwith notify the other of any medical or other emergency affecting the children whilst in that party's care.
Restraints
17.
That each of the parties be restrained by injunction from denigrating the other party to the children and/or causing or permitting any other person from doing so in the presence or hearing of the children.
18.
That each party be restrained by injunction from publishing any material filed in these proceedings or making any comments about the parties on any form of electronic or print media.
19.
That the parties be restrained from using physical discipline on the children whilst the children are in their care.
20.
That the Independent Children's lawyer's appointment be discharged, at the end of the six month period.
Other
21.
That pursuant to Section 65L(1)(a) of the Family Law Act (1975) as far as practicable compliance with these orders be supervised by a Family Consultant.
22.
That pursuant to Section 65L(1)(b) of the Family Law Act (1975) the Family Consultant give the parties such assistance as is reasonably requested by a party to assist them to carry out these parenting orders.
23.
That the father cause the children to be brought to the Family Consultant by arrangement with the Manager, Child Dispute Services for the purpose of the Family Consultant explaining the orders to the children.
24.
That the father and the children undertake family therapy through an organisation to be agreed between the father and the Independent Children’s Lawyer.
25.
That the mother forthwith provide to the Independent Children’s Lawyer the children’s passports which shall be then forwarded to the father sho shall retain them pending further order.
26.
That the father shall pay the further costs of Dr R of $1,237.50 within 42 days as directed by the Independent Children’s Lawyer.
Change of name
27.
That the application to change the children’s surname is dismissed.
28.
That all parties are restrained from causing the children to have any surname other than the father’s surname.
29.
That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, 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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