Wynyard and Anor and Wynyard

[2009] FamCA 545

FAMILY COURT OF AUSTRALIA

WYNYARD AND ANOR & WYNYARD [2009] FamCA 545

FAMILY LAW – CHILDREN – Consent orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Wynyard and Anor

RESPONDENT: Ms Wynyard

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8862 of 2007

DATE DELIVERED: 5 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.J. Potter

SOLICITOR FOR THE APPLICANT: Stephen A Canals

COUNSEL FOR THE RESPONDENT: Ms K.L. McNaught

SOLICITOR FOR THE RESPONDENT: De Marco Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr T.S. Lynch

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the grandparents engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 8862 of 2007

MR WYNYARD AND ANOR

Applicant

And

MS WYNYARD

Respondent

REASONS FOR JUDGMENT

1. This is a parenting case involving a child, who is aged just six years.  She was born in January 2003.  I will not traverse the background of the matter, but for one issue.  The parties have come before me today on what was to have been the first day of the parenting trial.  The dispute, if I can describe it that way, between the parties revolves around how much time the grandparents are to have with the child.  The dispute effectively involves the grandparents and the mother, the father not being a participant in the proceedings. 

2. It is a vexed question at the moment for this Court as to whether a court can blithely make orders by consent of parties in circumstances where at some stage there have been significant allegations of family violence; family violence, in particular, involving a risk to the child.  My own view is that the Court should not simply rubber‑stamp those orders, but, rather, inquire of the parties as to whether or not they believe that, whatever assertions were made at some stage or other, those are no longer factors about which the Court ought to have concerns, in terms of risk to the child. 

3. In this case I understand that the Independent Children's Lawyer no longer has concerns, vis‑a‑vis the parties in the hearing; and, importantly, I note that there is a specific paragraph that the maternal grandparents will supervise the child when Mr A is at the home of the maternal grandparents. 

4. Having regard to those issues, I am satisfied that there are no risk factors that a court ought to intervene about in a case such as this.  This case is also being taken out of the litigation stream, notwithstanding it has got all the way down to the final hearing because the parties have, very sensibly and quite properly, decided to try and resolve their differences through a program run by Lifeworks.  Mr Lynch has been the proponent of that organisation, and, to the credit of the parties, they have endeavoured to follow that lead and will try to resolve all of the differences outside of the litigation road, and they are to be commended for that. 

5. Only for the purposes of the Court's management of cases, I am striking the case out, but giving the parties a right of reinstatement in the event that they are unsuccessful in their counselling and therapy phase.  To all intents and purposes though, the Court is treating this case as finalised.  That includes a discharge of the Independent Children's Lawyer's order, and therefore his involvement, as of 15 June. 

6. In the event that the parties ultimately do fail to resolve the matters, and I hope that does not happen, then they will have a right to approach the Court to have the case brought back on for final hearing without having to start all over again, and at that point in time an application will be needed to be made for the reappointment of the Independent Children's Lawyer. 

7. It also must be noted that this is not an invitation for the parties to simply give up and come back to court.  I will be vigilant in ensuring that they have endeavoured seriously to resolve all these issues, as they have said to me today they have that intention.  So that extent I will direct that my reasons be transcribed and be placed on the court file.  But otherwise I will make orders in terms of the minute, which I will mark as exhibit "A". 

8. I direct that the minute remain on the court file.  I will ask the solicitor for the grandparents to engross that minute and email it to my associate within seven days.

I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin 

Associate: 

Date:  24 June 2009