Adams and Adams

[2009] FamCA 810

FAMILY COURT OF AUSTRALIA

ADAMS & ADAMS [2009] FamCA 810

FAMILY LAW – CHILDREN – Interim

APPLICANT: Mr Adams

RESPONDENT: Ms Adams

FILE NUMBER: DGC 427 of 2008

DATE DELIVERED: 6 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 6 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tulloch

SOLICITOR FOR THE APPLICANT: Hold & McDonald

COUNSEL FOR THE RESPONDENT: Mr Serra

SOLICITOR FOR THE RESPONDENT: Jane Baldwin

Orders

BY CONSENT:-

1. That the father and the mother have equal shared parental responsibility for the children of the marriage R born … December, 1998 and E born … November, 2001 (“the children”).

1. That until further order the children live with the mother.

1. That until further order the children spend time with and communicate with the father as follows:-

NOT BY CONSENT:-

(a)     On each alternate weekend from 3.30 pm (or after school) Friday until 9.00 am or the commencement of school on Monday (commencing 7 August, 2009);

(b)    On each alternate Wednesday (following the weekend when the children are not with the father) from 3.30 pm (or after school) until 9.00 am (or the commencement of school) on Thursday (commencing on 19 August, 2009);

BY CONSENT:-

(c)    For one half of the school term holidays as may be agreed and in default of agreement:-

(i)     For the first half of such school term holidays in even numbered years from 10.00 am on the first Saturday until 5.00 pm on the second Saturday of such holidays;

(ii)    For the second half of such school term holidays in odd numbered years from 10.00 am on the middle Saturday until 5.00 pm on the last Saturday of such school term holidays.

(d)    For one half of the long Christmas vacation as may be agreed and in default of agreement:-

(i)     In each alternate week;

(ii)    The first week to commence at 10.00 am on the day following the last day of Term 4; and

(iii)     Irrespective of any other part of this Order the father’s time to conclude at 10.00 am on the day prior to the children commencing Term 1.

NOT BY CONSENT:-

(e)    From Christmas Eve at 4.00 pm until Christmas Day at 4.00 pm in 2009 and in each alternate year thereafter;

(f)     From Christmas Day at 4.00 pm until Boxing Day at 4.00 pm in 2010 and in each alternate year thereafter;

(g)    That in the event that the children are with the father his time to be suspended as follows:-

(i)     From Christmas Day at 4.00 pm until Boxing Day at 4.00 pm in 2009 and in each alternate year thereafter; and

(ii)    From Christmas Eve at 4.00 pm until Christmas Day at 4.00 pm in 2010 and in each alternate year thereafter;

BY CONSENT:-

(h)    In the event that Father’s Day falls on a day when the children are not otherwise with the father, from 5.00 pm on Father’s Day Eve until the commencement of school Monday;

(i)     In the event that Mother’s Day falls on a day when the children are with the father, such time to be suspended from 5.00 pm on Mother’s Day Eve until the commencement of school Monday;

(j)     By telephone at any reasonable time;

(k)    At such further and other times as may be agreed.

1. That until further Order where changeovers do not occur at the school the father will be responsible for collecting the children from the mother at the commencement of his time and the mother shall be responsible for collecting the children from the father at the conclusion of his time.

1. That until further order each party to do all such acts and things and sign all such documents as may be required to authorise the children’s school to provide to each of them at their own expense copies of all school reports, newsletters and other information relevant to the children and further each of them shall be permitted to attend any school event ordinarily attended by parents.

1. That until further order each party keep the other informed at all times of any medical or health issue affecting the children.

NOT BY CONSENT:-

1. That until further order each parent provide clothing for the children while they are in their care.

1. That until further order the father be restrained from consuming alcohol for twelve (12) hours prior to and during all periods of time when the children are with him.

BY CONSENT:-

1. That until further order the father will provide R with her own room during periods when she is staying overnight at his home.

1. 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.

1. All extant interim applications be otherwise dismissed.

1. Certify for Counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 427 of 2008

MR ADAMS

Applicant

And

MS ADAMS

Respondent

REASONS FOR JUDGMENT

1. This is an interim dispute about 10-year old R and 7-year old E.  The case is currently in the list, waiting to be placed in a judicial docket, and in the meantime, the issues in dispute today are of relatively small compass.  Still, the provisions of the Family Law Act apply and I must decide these issues in the best interests of the children, taking into account the various principles set out in s 60CC of the Act. 

2. On any view, the father will continue to have a meaningful relationship with the children between now and the hearing, while they continue to live primarily with their mother, as they have since the parents separated in 2004.   

3. The first issue relates to the time configuration of the time the children spend with their father.  Currently, they are seeing him every second weekend from Friday to Sunday, and that has been the situation for about two years.  He wants that increased so that he is with the children on alternate weekends from Friday to Tuesday, and in the other week, from Monday to Tuesday, that is an increase from two nights’ per fortnight to five nights’ per fortnight. 

4. The mother’s view is that there should be an increase, but not to that extent.  She proposes that the alternate weekend time now be increased so that the children would be with their father from after school Friday to the start of school Monday, and she proposes that the children have dinner with him each intervening Wednesday, but return to her at 7 pm. 

5. I have the benefit of an Issues Assessment prepared by Family Consultant Ms L quite recently, on 27 April 2009.  In turn, Ms L had the benefit of speaking not only with the parents but also with the children.  She described the children in very nice terms.  They sound like delightful young people.  They were able to express their views.  They are happy with the current arrangements, overall, in terms of the time that they are spending with their father, but it was apparent to her that they could cope happily with a small increase in time at this stage, and that is her recommendation.

6. On the strength of that material, and emphasising to the parents that I have not heard the whole case, and it may be dealt with quite differently when a judge has the benefit of all the evidence, I propose an increase in time, from the Friday to the Monday in alternate weekends.

7. I also propose one overnight in the intervening week.  I agree with the father’s position that dinner only can be unsettling, because the children need to be returned at 7 pm, when they are probably getting a bit tired and fractious, and it is to their benefit to settle where they are, and for their dad to be involved in picking them up from school one afternoon and taking them to school the next day.  That way, he is spending substantial and significant time with them overall. 

8. The Wednesday was suggested by the mother, the Monday by the father.  It does not matter.

DISCUSSION

1. In that case, I will go with the Wednesday, because it spaces it out quite well.  The father does not mind, so if the mother has a view, I am quite happy to tie it in with that.

2. School holidays have been resolved otherwise between the parents, so the children will be spending more time with their father then. 

3. The next issue was Christmas Day.  The parties have already seen that it is a vexing issue from the court’s point of view, as well as their own.  Many families face this difficulty.  I am sympathetic to each parent’s desire to have the joy of the children on Christmas morning, and to allow the children to share the joy in their respective households with their respective siblings, half-siblings, step-siblings and so on.  The only way I can approach that is to divide it year-about, as suggested.  That is fair to the children, to be able to enjoy it in each household in alternate years.   

4. The next issue was whether there should be an order for the father to be in substantial attendance at all times during school holidays, to cope with the fact that he might be working.  I do not propose making an order to that effect.  There was absolutely nothing to suggest that the children are in need of any particular care or attention, or left without appropriate care or attention, when the father works.  As I said in the course of argument, working parents, and all the juggling that goes on around work hours, is a normal part of our community and a normal part of family life, and something to which these children can be quite safely exposed.  I am not going to make that order.

5. The next issue arose in relation to each parent having a set of clothing in their home.  There have been on-going problems about it.  I am not belittling it, but I will not get to the bottom of it today.  Each parent says they do have their own supply of clothes in any event.  So there is clarity for the children, I do propose ordering that each parent will use their own clothing when the children are in their care.

6. The next issue related to the father’s consumption of alcohol.  He has, in the past, had an issue with alcohol.  It is a very promising sign that he concedes that openly, and I am hopeful that when he says that it is an historical problem, that is the case.  However, as the problem existed, understandably, there is a high degree of sensitivity on the mother’s part, still, at this stage.  I am going to accede to her request that the father not consume alcohol for 12 hours before or during the time he spends with the children.  I acknowledge that it is intrusive to him, but doing the best that I can in terms of promoting the children’s best interests, until the matter is dealt with finally, and that order may be removed, I propose having that in the orders.

7. The next issue related to the father’s sister.  There was apparently an unpleasant incident at court on the day of the divorce.  The mother says that the sister responded very badly and rudely to her.  That is supported in the sense that I am told that the father agrees there was an incident, but he has dealt with it and it has been resolved between the parties, including that the father has apologised to the mother. 

8. The other issue in relation to the father’s sister is the mother’s assertion that she has a drug problem, or psychiatric or psychological problems, but there is no material to substantiate that. 

9. Given the fact that emotions can run high at court, although that in no way excuses bad behaviour, but given mostly particularly that the father has apologised to the mother and acknowledged it should not have occurred, I am going to proceed on the basis that I can be confident that he will ensure that his children are not exposed to any negativity on the part of his sister.  I will proceed on the basis that there is nothing to suggest he is other than a protective father, and he will not place the children at risk with his sister, if she were a risk, or anyone else.

10. The remaining issue does not appear to be an issue anymore, in the sense that it is that young R expressed her desire to sleep in a room separate from her 14 and 10-year old stepbrothers.  That is quite reasonable at her age and stage.  The father acknowledges that.  It is in everybody’s interests.  The mother would like that written into the order, and I think that is reasonable, so that R knows she has been heard, and again, there is clarity.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  6 August 2009