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Portman & Jacob [2013] FCCA  2435  (22 October 2013)

Last Updated: 12 December 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

PORTMAN & JACOB

[2013] FCCA 2435

REPRESENTATION

ORDERS

THE COURT ORDERS BY CONSENT THAT:

(1) That all existing orders be discharged.

Parental Responsibility

(2) The mother and the father will have equal shared parental responsibility in consultation with each other for making decisions about major long term issues regarding X born (omitted) 2003 (“the child”).
(3) For the purposes of these Orders, equal shared parental responsibility to be exercised in relation to major long term issues includes but is not limited to:

• (a) the child’s education (both current and future);
• (b) the child’s religious and cultural upbringing;
• (c) the child’s health;
• (d) the child’s name.

(4) With respect to the decisions referred to above, save and except for decisions concerning extra-curricular activities and medical emergencies, the mother and father are to consult with each other about the decisions to be made as follows:

• (a) they shall inform the other parent about the decision to be made via email not less than sixty (60) days prior to the date the decision must be made;
• (b) they shall consult with each other via email about the decision to be made;
• (c) they shall make a genuine effort to come to a joint decision;
• (d) if they are unable to come to a joint decision within twenty one (21) days then they shall attend at the Family Relationship Centre for mediation;
• (e) If no agreement is reached at mediation then the father will make the decision and forthwith inform the mother in writing of his decision.

(5) Notwithstanding the provisions of the Orders above:

• (a) the father shall be responsible for the decisions concerning the child’s daily care, welfare and development, including extra-curricular activities, whilst the child is living with or spending time with the father; and
• (b) the mother shall be responsible for the decisions concerning the child’s daily care, welfare and development, including extra-curricular activities, whilst the child is living with or spending time with the mother.

(6) That neither parent will change the child’s residence from the (omitted) area without an order of this court or the written consent of the other party.

Living Arrangements for the Child

(7) For the remainder of the 2013 school year, and in accordance with the current arrangements for the child, the child will live with the mother and shall spend the first half of the 2013 Christmas school holidays with the mother and the remainder with the father, with Skype to continue on two occasion each week.
(8) The child will live with the father save as is otherwise provided for in these orders.
(9) The child will spend time with the mother from 2014 as follows:

• (a) For the entirety of the Easter, June/July, September/October school holidays each year being the school holidays for the school which the child is attending at that time. The time to commence the day after the last day of school each term and to finish on the Saturday prior to the recommencement of the following school term.
• (b) During the Christmas school holidays each year the child will:-
  • (i) Live with the father for the first half in each even numbered year and with the mother for the remainder of those holidays;
  • (ii) Live with the mother for the first half in each odd numbered year and with the father for the remainder of each of those holidays; and
  • (iii) When the child spends time with the mother in the second half of those holidays, the child is to be returned to the father on the Friday immediately before the start of the new school year, with the calculation of half the school holidays to be adjusted accordingly.
• (c) On the provision of two (2) weeks written notice to the father, the mother has the option of spending up to two (2) weekends of additional time each school term with the child provided that the time spent takes place in the (omitted) area and the mother takes the child to his usual extra-curricular activities, with the weekend to be extended to include any public holiday or pupil free day on the Friday or Monday.

(10) For the purposes of the child spending time with the mother during school holiday periods the following provisions apply:-

• (a) The mother will make the bookings for the child to travel in accordance with these Orders no later than fourteen (14) days prior to the school holiday period;
• (b) The mother will book and pay for the child’s airfares and provide a copy of the itinerary to the father two (2) weeks in advance of each school holiday period;
• (c) The mother will be solely responsible for the cost of airfares;
• (d) The father will be solely responsible for meeting any travel costs for the child to travel between the (omitted) to Brisbane airport;
• (e) The father will do all acts and things to ensure the child is delivered to the airport in sufficient time to catch the flight to spend time with the mother; and
• (f) The mother will ensure the child is delivered to the airport in sufficient time to catch the return flight to the father.

(11) Changeovers that take place in the (omitted) area will occur through the school or such other location as is agreed between the parties prior to the mother arriving in the (omitted) area.
(12) The parent with whom the child is not living may communicate with the child by Skype or telephone each Wednesday and Sunday with the non-resident parent to initiate the communication between 7.00pm and 7.30-pm with alternative arrangements to be made via email and agreed upon.
(13) The parties are to facilitate all requests of the child to Skype/ telephone the other party as and when the child requests.
(14) On Father’s Day, (omitted), Ms J’s birthday or Ms N’s birthday, if the child is not already living with the father, the mother shall facilitate the child to phone/ Skype with the Father between 7.00pm ad 7.30pm.
(15) On Mother’s Day and the mother’s birthday, if the child is not already living with the mother, the father shall facilitate the child to phone/ Skype with the mother between 7.00pm ad 7.30pm.
(16) The parent who has the child in their care on Christmas Day will ensure that the child speaks to the other parent by initiating a Skype or telephone call to the other parent between 9.00am and 10.00am on Christmas Day or as otherwise prior agreed in writing including email and text.
(17) On the child’s birthdays the parent with whom the child is not with on the day shall be at liberty to contact the child by telephone between 7.00 and 7.30pm and the other parent shall ensure the child is available to take the call.

Parents Involvement with the Child’s School

(18) Both the mother and the father are authorised and permitted to attend at the child’s school or school classroom or similar institution within the guidelines for parental attendance at such institution, regardless of which parent has the child in their care on those days, subject to the discretion of the school and the teacher.
(19) Both the mother and the father are permitted to attend a parent/teacher meeting, school concerts, shows, sports days, all ceremonies and other school events and functions, regardless of which parent has the child in their care on those days, subject to the discretion of the school and the teacher.
(20) Both the mother and the father will authorise the child’s school to provide to both parents copies of school reports, newsletters and similar documents, and all information about the child and his academic and behavioural progress (including attendances upon the school guidance officer) and that this Order shall constitute the parent’s authority for same.

Parents’ Involvement with Child’s Health

(21) Both the mother and the father will authorise the child’s doctors, treating health professionals and specialists to provide to both parents, copies of all reports, documents and information in relation to the child and this Order shall constitute each parent’s authority for same (at that parent’s cost).
(22) Each party shall advise the other of any medical emergency regarding the child forthwith.
(23) Each party shall advise the other of any significant medical, dental or other appointments made for the child and the outcome of same.
(24) When the child is in the (omitted) area each parent will continue to take him to (omitted) Medical Centre unless it is not possible or practicable to do so.
(25) The father will notify the mother of the name and contact details of the child’s treating doctor and/or other health professionals in his local area, immediately upon the child attending upon same.

Restraints

(26) The parties are restrained from denigrating or criticising the other party or their partner with or in the presence or hearing of the child or allowing any other person to do so. The parties are to forthwith remove the child from the presence of any person doing so.
(27) The parties are restrained from using the child as a conduit to make any requests of the other party.
(28) Neither party will leave the child at home without an appropriate supervisor.

General Orders

(29) The parties will communicate by email regarding the child and any arrangement for direct communication in relation to the child. Any direct verbal communications in relation to the child are to occur only by way of prior agreement and not in the presence or hearing of the child.
(30) The father will forward to the mother a fortnightly email as to the child’s education, extracurricular activities and his welfare, including photos, copies of awards and advising her of events of significance, including information about the child’s day to day activities to assist with communication by Skype.
(31) The father will do all acts and things necessary to enrol the child in at least one extracurricular activity and will use his best endeavours to ensure the child’s on-going involvement in that activity.
(32) When either parent travels interstate or by air with the child, the parent travelling will provide to the other parent two weeks prior to the travel the following information and documentation:

• (a) Date of departure;
• (b) Date of return;
• (c) Copies of itinerary;
• (d) Contact address and telephone number for the period of absence.

(33) The child’s passport will remain with the father as the primary carer and will be presented to the mother upon written request and accompanied by travel itinerary.
(34) Each parent will keep the other advised of the home address, email address, landline and mobile telephone numbers and shall advise each other forthwith upon any change.
(35) The father will do all such acts and things to continue the child’s psychological therapy with a suitably qualified psychologist as agreed between the parties in the (omitted) area.
(36) The father will do all acts and things necessary to comply with the recommendations made by Dr C in his report produced following an assessment of the child on 1 October 2013.
(37) That the ICL in the company of Ms W will explain the orders to the child as soon as practicable.
(38) That the ICL be discharged following on from his meeting with the child.
(39) The father will maintain private health insurance coverage for the child including extras coverage for dental and psychology.
(40) The mother will ensure that the child attend upon Ms W as recommended by Ms W during November and December 2013.
(41) The father will do all acts and things to obtain VVCS coverage or Medicare Mental Health Plan Coverage for any specialist services provided to the child.
(42) That Ms J and Mr D be permitted to read the reports of Mr P.
(43) That from the date of this Order, the mother pay to the father one half of any amount paid by the father in respect of any:-

• (a) Payment to Ms W not paid by the Commonwealth or his private health provider;
• (b) Payment for psychology services for the child not paid by the Commonwealth or his private health provider, with the child’s need for on going therapy to be reviewed in 12 months from the date of this order and thereafter future costs to be met by agreement between the parties; and
• (c) Payment to (omitted), Dr C or any software or educational program recommended by Dr C, (with the total costs to be capped at $1000.00) and thereafter the costs are to be met by agreement between the parties.
• (d) Medical or dental expenses for the child not paid by the Commonwealth or his private health provider, until such time as there is a Child Support Assessment in place.

(44) All outstanding Applications be removed from the pending cases list.

Notations

1. Noting that at this time the identity of the child’s school on the (omitted) has not yet been agreed and therefore the fees are unknown, it is the intention of the parties that once the school has been agreed all school related expenses will be met equally.
2. In the event that the mother relocates to the (omitted) or some location closer to the child then the parties will attend at the Family Relationship Centre to review the amount of time the child spends with the mother.

100. For the purposes of Order 35 hereof the father will within seven (7) days provide to the mother the names, addresses, qualifications and fee structure of not less than three psychologists. The mother will within a further seven (7) days nominate a psychologist for the child. In the event that the mother does not select a psychologist then the father shall do so and shall inform the mother of his selection.

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

CSC 587 of 2011

Applicant

And

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am familiar with the history of this matter and it has been before me in a trial. I have heard some evidence to date and I am satisfied having read all of the material in preparation for the trial that these orders are entirely in X’s best interests. I am sure that there has been a lot of agonising on the mother’s part. But I am also sure that she has very much made the right decision.
2. I intend to make orders as per the draft marked with the letter “A” signed by me and placed on the file. I have made these orders as per the draft. I want to say to the parties that, as Ms McArdle said to me earlier today, I have not made any findings in this matter and I do not need to because I have had the parties make orders by consent. Though, of course, a Judge can always choose to hand down reasons, notwithstanding that there are orders by consent.
3. I did hear evidence yesterday all day from the mother. I am not going to make any findings. But I have something I wish to say to the mother. Every now and then a Judge hears evidence that is quite shocking. Yesterday, I heard some evidence from the mother that troubled me greatly and which I found quite shocking. Somehow, through your own initiation, you admitted that you managed to gain access to funds for your own use. Those funds were otherwise intended by the Victorian Government to go to bushfire victims. You told the Court that you received, as I recall it, $1,400.00. I think you said “A thousand for me and 400 on account of X”.
4. You agreed that you were not involved in the Victorian bushfires. Your home was not burnt. Your belongings were not destroyed. You were not injured. Neither was X. You did not have a home in Melbourne or within 4000 kilometres of Melbourne. You did not even go to Melbourne at that time. I have pondered overnight on the gravity of this action and, in particular, how that conduct might impact on X in the long-term.
5. X is a much loved child and X loves each of his parents and I have no doubt that you are each his heroes. One day, X is going to find out that his name was used by his mother to receive funds that should have gone to bushfire victims. People who had lost either their lives, have suffered serious injury, have lost their homes, all that they owned.
6. I wonder what X will think of his mother when he finds that out. I wonder how that is going to impact on his relationship with his mother, who is, as I say, a much loved mother. I wonder if the mother has ever thought of this. I am certain that if he finds out that his mother wrongly received $1,000.00 on account of her own alleged bushfire experience, that X is going to be ashamed.
7. I would invite the mother to consider her position and to consider X’s. In my view, it would be in X’s best interests for you to remove this shameful blemish from your history and to make a donation to the current bushfire victims in the (omitted).
8. The mother strikes me as a compassionate woman and a compassionate mother. I would say to you, madam, if you have one ounce of decency and compassion, you ought to set about making a donation of $1,400.00, without delay, and to set the record straight and to relieve X of future possible embarrassment and shame.
9. Having made those comments to the mother, I should say to the father that I have no doubt that the father, in this matter, is a compassionate and loving father and I have no doubt that the orders, which provide for X to now live with the father, are the orders which are in X’s best interests. In my view, it is time for one parent to devote their time to X.
10. A child who cannot read, at X’s age, is going to miss out on life’s experiences and opportunities. If he cannot read now, he will not be able to read for the rest of his primary schooling unless there is some special intervention. He is getting too old not to be able to read. Once he gets to high school, if he cannot read, he will most assuredly drop out of high school. He will not be able to do an apprenticeship, as he will not be able to read. He will not be able to read what it is he has to learn or pass tests with vocational training. If he cannot read he cannot even get a drivers licence as he will not be able to read the questions or answer them.
11. Mr Baston has delicately referred to X as a special needs child. He has been reluctant to use that term. I am not reluctant to use that term. X is absolutely a child with special needs. He is a child who will not be able to reach his full potential in life unless there is some special intervention. I consider that both of you have now realised what needs to happen and I am satisfied that the agreements that you have both agreed to today will enable X to reach his full potential in life and are in his best interests.
12. I have made the orders that you have both agreed to. The best thing you both could have done for X was to agree. And you have both done that. It is time for you both now to put all of the issues – that have been agitated between you since separation behind you. You need to give X a fresh start. Each of your partners, wives or future spouses needs to know that this is the end. I congratulate you both for coming to this very sensible and child-focused resolution and I particularly congratulate the lawyers involved for providing realistic and helpful advice to your clients.

I certify that the preceding 12Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twelvetwelve (12) paragraphs are a true copy of the reasons for judgment of Judge Willis

Associate:

Date: 18 November 2014