Fletcher and Fletcher

[2012] FamCA 1027

FAMILY COURT OF AUSTRALIA

FLETCHER & FLETCHER	[2012] FamCA 1027
FAMILY LAW – CHILDREN – Best interests of the children – Mother to have sole parental responsibility – Father to spend time with the children subject to a letter being received from his treating psychiatrist.
APPLICANT:		Ms Fletcher

RESPONDENT: Mr Fletcher

INDEPENDENT CHILDREN’S LAWYER: Ms Kushal, Solicitor

FILE NUMBER: BRC 6876 of 2011

DATE DELIVERED: 29 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 29 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Andrew of Counsel appearing for the Applicant Mother

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland, Woodridge

COUNSEL FOR THE RESPONDENT: There being no appearance by the Respondent Father

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Pendergast of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bridges Family Law Specialists

Orders

IT IS ORDERED:

Where the children shall live and parental responsibility

1. That the children, B born … October 1998 and C born … October 1998 (“the children”) shall live with the Mother.

1. That the Mother shall have sole parental responsibility for the major long term care welfare and development of the children and she shall inform the Father, and keep the Father informed, about the decisions made in the exercise of her sole parental responsibility.

1. That the parents shall have sole parental responsibility for the day to day care, welfare and development of the children whilst the children are in their care.

   Time with the Father

2. That subject to the Father providing the Mother with a letter from the Father’s treating psychiatrist to the effect that the Father’s medication and condition are stable and he does not pose a risk to the children, then the children shall spend time and communicate with the Father as follows:

a)from 9:00am until 4:00pm each alternate Sunday, commencing the first Sunday after production of the letter from the Father’s treating psychiatrist to the Mother;

b)from 9:00am until 4:00pm on Father’s Day;

c)on the children’s birthdays, if the Father is not otherwise spending time with the children, and provided that their birthdays fall on a weekend or during school holidays, from 9:00am until 1:00pm;

d)from 1:00pm until 6:00pm on Christmas Day;

e)by telephone between 8:00pm and 8:30pm, provided that the Father is not intoxicated by alcohol, with the Father to initiate the telephone call to the children’s mobile telephone/s; and

f)by text message to the children’s mobile telephone/s between 8:00pm and 8:30pm, provided that the communication does not contain foul language or other inappropriate content.

1. That the Father give the Mother at least forty-eight (48) hours notice by text message of his intention to exercise time in accordance with paragraph 4 hereof.  If the Father fails to give such notice, the Mother is not required to make the children available for time.

2. That the children shall be permitted to telephone or text message either parent at any reasonable time.

3. That, notwithstanding these Orders, the Mother shall spend time with the children from 9:00am until 4:00pm on Mother’s Day.

   Changeovers

4. That changeovers shall occur:

   a)at school when they are due to occur at school; and

   b)at all other times at the Suburb D Police Station, with the parents not to approach each other at changeover.

   Health and Education

5. That each parent shall ensure that the children attend all educational, sporting and hobby events when the children are with that parent.

6. Subject to the conditions imposed by the children’s school, these Orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, school formals, fetes, concerts, plays and parent-teacher interviews.

7. That the parent responsible for the care of the children is to contact the other parent as soon as practicable if the children:

   a)become seriously ill;

   b)are hospitalised; or

   c)are involved in an accident; and

   d)are to inform the other parent of the name and address of any medical doctor and treating facility.

8. That this Order serves as authority to the children’s doctors, medical specialists and health care professionals to release information to both parents as may be requested from time to time concerning any relevant matters concerning the children.

1. That this Order serves as authority to the children’s school to release information to both parents as may be requested from time to time concerning information about the children, with such information to include but not be limited to copies of the children’s school report cards; copies of the children’s school photographs; copies of any awards/letters of commendation that the children may receive at school or any other extra curricula activities; and information regarding the children’s health and general progress or wellbeing.

   Communication

2. That both parents shall advise the other parent of a current postal or contact address and contact telephone number/s and shall advise the other parent within forty-eight (48)hours of any change to those details.

   Other

3. That the Father be, and hereby is, restrained from:

   a)consuming alcohol during the time the children are in his care or in the twenty-four (24 )hours prior to his time;

   b)denigrating the Mother to, or in the presence or hearing of the children;

   c)discussing adult issues with or in the presence or hearing of the children;

   d)using foul language directly to, or in the presence or hearing of the children;

   e)physically disciplining the children;

   f)touching the children inappropriately on their genitals or breasts, or making inappropriate comments about the children’s bodies; and

   g)allowing any other person to do any of the above whilst in the presence or hearing of the children.

4. That the Mother be, and hereby is, restrained from:

   a)consuming alcohol to excess during the time the children are in her care;

   b)denigrating the Father to, or in the presence or hearing of the children;

   c)discussing adult issues with or in the presence or hearing of the children;

   d)using foul language directly to, or in the presence or hearing of the children;

   e)physically disciplining the children; and

   f)allowing any other person to do any of the above whilst in the presence or hearing of the children.

5. That the Independent Children’s Lawyer be discharged

   .

6. That all outstanding applications be dismissed.

1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6876 of 2011

Ms Fletcher

Applicant

And

Mr Fletcher

Respondent

REASONS FOR JUDGMENT

1. Having heard the submissions briefly of the applicant’s counsel, Andrew, and at much more length of the independent children’s lawyer, and having read the material, in particular the material of Dr E, a psychiatrist, and

   
   

   Ms E which was made – the report was made pursuant to the order of Purdon-Sully FM, and it appears that this was released on 7 December.

2. And further, the affidavit material of the mother as well as the affidavit filed by leave today, I have no hesitation in making the order as proposed by the independent – by the applicant, and supported, as I understand, on instructions via counsel for the independent children’s lawyer.

3. I am not going to, as I indicated before, make an order giving the father the opportunity of applying to have the order set aside.  On the basis of it, and even accepting some of the stuff that he sets out in his affidavit 12 months ago, I would consider that he probably would not have received anything more than what is contained in this order.

4. In fact, as I have already said, I have some concern about order 10, but in all the circumstance I think he should be more than happy with the order proposed by the mother, and I compliment her on at least putting the children first by giving them the opportunity of getting to know their father pursuant to the order.

5. I am mindful of the authority of Rosa & Rosa [2009] FamCAFC 81; I am sure that the – I am satisfied that the contact proposed is significant and substantial, and that there is no difficulty other than for the respondent’s perhaps addiction to alcohol for the contact to be reasonably practical.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 29 November 2012.

Associate: 

Date:  29 November 2012