Yablon and Samet

[2007] FamCA 1508

FAMILY COURT OF AUSTRALIA

YABLON & SAMET [2007] FamCA 1508

FAMILY LAW – CHILDREN – Parental responsibility – With whom a child communicates – Consent orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Yablon

RESPONDENT: Mr Samet

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1778 of 2006

DATE DELIVERED: 14 December 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Justice Cronin

HEARING DATE: 14 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Gregory

SOLICITOR FOR THE RESPONDENT: Kenna Teasdale

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Forster

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Forster & Associates

Orders

1. The trial date of this case is fixed for 16 April 2008 at 10.00 am for one days as a reserve matter before Justice Cronin.

2. That the parties attend a conciliation conference with Registrar Kaur on 21 February 2008 at 9.15am as to issues associated with the final hearing.

BY CONSENT IT IS ORDERED:

1. That all previous parenting Orders be and are hereby discharged.

2. That the husband and the wife retain the equal shared parental responsibility of the children C born … May 1997 (“[C]”) and F born … June 2001 (“[F]”).

3. That the children live with the wife and she have the sole responsibility for the children’s day to day care, welfare and development.

4. That the children spend time with the husband at such times as may be agreed between the husband and the wife.

5. That the husband be at liberty to communicate with the children by letters, cards and presents and the wife will do all such acts and things necessary to forward such letters, cards and presents to the children and encourage the children to respond to the husband.

6. That the wife as soon as practicable communicate with the husband as to the following matters:

   (a)Any serious medical emergencies, if any, involving the children advising the nature of such medical emergency and any medical treatment required of the children.

   (b)Keep the husband informed as to the children’s progress at their respective schools from time to time.

   (c)Forwarding photographs of the children to the husband at reasonable intervals.

7. That the husband be at liberty to communicate with the wife and the children via SMS text message to the wife’s mobile telephone number, which has been provided to the husband this day.

8. That the Orders appointing the Independent Children’s lawyer be and are hereby discharged.

9. That the husband be restrained from attending the children’s’ school save for pre-arranged meetings with school personnel.

10. That until further order, the children be known as C Samet and F Samet.

11. 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 the 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.

AND THE COURT NOTES

1. That the husband acknowledges and accepts that both C and F, at the present time, have expressed clear wishes that they do not wish to have any form of contact or communication with the husband and notwithstanding the children’s expressed wishes, the wife will continue to encourage the children to have such contact and communication.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1778 of 2006

MS YABLON

Applicant

And

MR SAMET  

Respondent

REASONS FOR JUDGMENT

1. This matter was listed in a call-over of cases on 14 December 2007.  The intention at that time was to list the matter for final hearing. 

2. The husband and the wife presented a set of signed minutes of consent orders requesting that I endorse them as final orders.  The Independent Children’s Lawyer indicated that she would not sign and did not consent to the orders but would not oppose them.  Consequently, I indicated that I would read the file and determine whether orders should be so made.

3. These are proceedings involving both property and parenting issues.  The parenting issues remain to be determined on another day.

4. The parenting issues revolve around two children C who was born in May 1997 and is therefore 10 years of age and F who was born in June 2001 and is therefore six years of age.  Both children live with the wife.  The fundamental issue in relation to the parenting dispute relates to how much time the husband should spend with the children.

5. The husband is a restaurant owner and the wife occupied in home duties.  They married in January 1996 and separated in April 2006. 

6. The file shows that proceedings were commenced in June 2006 by the husband who at that time sought orders that the children live with him from 6.00pm on Saturday until the commencement of school on the Tuesday of the following week.  There were other orders as well.

7. The court file shows numerous orders having been made. 

8. Eventually the parties agreed upon psychologist Mr P attending upon them and for the preparation of a family report.

9. The report of Mr P is almost a year old but it is enlightening.

10. The wife alleged that the husband was not a responsible parent and that he had no understanding of his actions upon the children.  She alleged physical and verbal abuse in their presence.  The wife explained to Mr P that the marriage was abusive and that related to issues including causing her financial hardship. 

11. The wife asserted that her objective was to provide an environment where the children were her priority and that they were protected from the dishonesty and negativity of the husband.

12. The husband for his part accused the mother of deliberately engaging in the dispute making such allegations against him for the purposes of some financial advantage in the property proceedings. 

13. One of the problems that the husband faced was the fact that there was an intervention order against him to which he consented albeit without any admission as to the truth of the allegations.  I am not sure that that makes a lot of difference.

14. Mr P interviewed both of the children.  It was quite clear that C adopted the position of her mother and provided a litany of complaints about her father which echoed those statements of her mother.  In January 2007, C’s position was that she did not want to have anything further to do with her father whom she did not trust or believe in.

15. The child F was sadly also negative and critical of his father but seemed to Mr P confused and emotionally overwhelmed by any discussion about his parents.

16. Mr P was critical of the husband in terms of what he observed about his capacity to deal with the children who were more than a handful.

17. Mr P described the boundaries in the family as extremely diffuse and commented that he was satisfied that there was inappropriate discussion and behaviour in the presence of the children by both parents.  He went on in some detail to describe what those discussions were.  He said that it was important to test the evidence for the purposes of ascertaining what the real dynamic was between the husband and the wife.  He seemed to take a dim view of both in respect of their behaviour.

18. Bearing in mind that this was still January 2007 however, Mr P recommended that matters be approached cautiously.  He recommended that the children should continue to reside with their mother and that she should be their primary carer.  He acknowledged that the relationship with the husband was strained and that that problem was exacerbated by the financial issues outstanding between the parties.  His recommendation in respect of the husband was that the children should see their father but for short periods of time.  He questioned the extent to which the husband would be able to manage the children and sufficiently focus on that issue.

19. Almost a year later, the parties attended as I have indicated with consent orders.  Notwithstanding the nature of their relationship, they have agreed to equal shared parental responsibility.  Fundamentally however, the husband is at liberty to communicate with the children by letters, cards and presents and the wife has agreed to facilitate that.  The communication between the husband and the wife is otherwise in relation to medical emergencies and for the wife to inform the husband of the children’s progress.  It goes without saying therefore that the limited recommendation of time by Mr P is not being followed and the husband has accepted that such an approach is currently impracticable.  The orders provide that the husband is at liberty to communicate with the wife as well as the children via text message but that those calls are to be made to the wife’s mobile telephone number.

20. It is not essential that the Independent Children’s Lawyer sign off on the orders because ultimately, the parties have to parent these children and whilst the situation may not be ideal, it is the best the parties can do in the circumstances.  The Court is in the same position effectively as the parties.

21. Section 60CC of the Family Law Act1975 (Cth) (“the Act”) requires the Court to consider as a primary consideration, the opportunity for the children to benefit from a meaningful relationship with each of their parents. It is difficult in this case to say how the relationship as described by Mr P and which obviously still exists, could be improved. It may be that it never will be. Accordingly, the only way that I can see that a meaningful relationship can be sustained between the father and the children is if he fulfils all of the requirements of the orders in sending the children information about him and for the wife to facilitate that.

22. I have considered all of the matters in s 60CC of the Act and am satisfied that there is not much evidence about the parenting capacity of the husband but I am quite satisfied that subject to the criticisms made by Mr P about the mother’s parenting, the children are otherwise properly cared for by her.

23. In the circumstances, with both parents indicating that this is what they desire, it only leads me to say that it is in the best interests of the children for those orders to be made in the circumstances.

I certify that the preceding Twenty Three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date:  14 December 2007