ANDREWS & GRANT

[2010] FamCA 997

FAMILY COURT OF AUSTRALIA

ANDREWS & GRANT [2010] FamCA 997

FAMILY LAW – CHILDREN – Parenting – spend time with father

Family Law Act 1975 (Cth)

APPLICANT: Mr Andrews

RESPONDENT: Ms Grant

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 3907 of 2009

DATE DELIVERED: 29  October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 13 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonnell SC

SOLICITOR FOR THE APPLICANT: Fiona Reid

COUNSEL FOR THE RESPONDENT: Mr Blackah

SOLICITOR FOR THE RESPONDENT:
SOLICITOR FOR THE ICL	Ms Truong

Orders

Pending further order

1. Orders 2 and 3 made on 3^rd August 2009 be discharged.

2. Order that the child L (born … October 2007) spend time with the father, Mr Andrews as follows:

   (a)       For a period of 8 weeks from the date of this order;

   (i)Each Tuesday and each Wednesday from 5pm until 6.30pm

   (ii)Each Saturday from 10am until 2pm

   (b)       Thereafter for a further period of 8 weeks;

   (i)Each Tuesday and Wednesday from 5pm until 6.30pm

   (ii)Each Saturday from 10am until 4pm

   (c )     Thereafter:

   (i)       Each Tuesday and Wednesday from 5pm until 6.30pm

   (ii)      Each Saturday from 10am until 12pm Sunday.

3. For the purposes of collecting and delivering the child, the parties will meet at “G Coffee Shop”.  In the event that, by arrangement of the parties, the father is to collect the child from the mother’s house, he will not be accompanied or if he proposes to be accompanied, he inform the mother not later than 24 hours before arriving who will be accompanying him.

4. That the father spend time with the child from 10am until 6pm on 26^th December 2010.

5. In the event that the father is unable to spend the ordered time with the child, he will notify the mother by email of that fact not less than 48 hours before the scheduled time, if possible in the circumstances.

6. The father will ensure that the car in which he proposes to transport the child contains a properly fitted, approved child car seat appropriate for the child’s age.

7. The father will within 24 hours of this order cause his solicitor to provide to the mother’s solicitor his residential address and his mobile phone number.

8. The father to continue to see his treating psychotherapist, Mr J for regular psychotherapy and to cooperate fully with Mr J’s treatment and recommendations

9. The father is and be restrained from consuming alcohol 12 hours prior to and during all periods that the child L is in his care.

10. Each party is hereby restrained from using any drugs other than those prescribed by his or her doctor or specialist.

11. That without prejudice, the father shall, upon a written request by the Independent Children's Lawyer to the father’s solicitor:

    (a)Submit himself to urinalysis within 24 hours of such a request being made, such urinalysis to be conducted under the supervision of a registered and authorised pathology service.

    (b)That such urinalysis be conducted in accordance with the Australian/New Zealand standard 4308:2001 procedure for the collection, detection and quantitation of drugs of abuse in urine.

    (c)That the father be solely responsible for the payment of the costs of such testing.

12. That the father do all things necessary to authorise his solicitor to provide a copy of the results of a test undertaken pursuant to Order 4 hereof to the Independent Children's Lawyer and the mother or her solicitor within 24 hours of his receipt of the results. 

13. That the father forthwith do all acts and things necessary to enrol in a Triple P Parenting Program and shall complete the course within four months of the date of these orders.

NOTE the agreement between the parties that in the event the child is significantly distressed on any period of time she spends with the father, he will return her to the mother’s care.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3007 of 2009

MR ANDREWS

Applicant

And

MS GRANT

Respondent

REASONS FOR JUDGMENT

1. Mr Andrews (‘the father”) applies for interim orders to spend more time with the parties’ child L (“the child”) born in October 2007.

Background

1. The parties began living together in May 2003 and married in 2004.  They separated on 8 March 2008 and are now divorced.  There is one child of the marriage L (the child) born in October 2007. The child lives with the mother.

2. In August 2009 consent orders were made that the father spend time with the child each Tuesday, Wednesday and Friday from 7.30 until 9am and during that time, the father be supervised by the maternal grandmother.

3. It seems that this arrangement did not work particularly satisfactorily and there were difficulties in arranging the supervision.  On occasions when the grandmother was not available to supervise, the mother offered herself as supervisor.  This was not particularly satisfactory to either party.  There were times when the father did not have the ordered time with the child. 

4. There is disagreement between the parties as to the reasons why the arrangements did not proceed smoothly.  In the circumstances of an interim hearing where the evidence is untested, it is not possible to determine contested factual issues.  However, in the result, the parties have managed to negotiate considerably and have, as between themselves reached significant agreement about the time the father is to spend with the child.  Their approach, in the light of apparent interpersonal tension, is commendable and reflects an appreciation of the needs of the child.

5. Some issues remain to be determined.

Agreement reached on 13^th October 2010

1. After providing for a discharge of the orders made in August 2009, the parties agreed that the father will spend time with the child on Tuesday and Wednesday from 5pm until 6.30 pm and on Saturday from 10am until 2pm.

2. The parties further agreed that after a period of time, the father’s time with the child on Saturday will increase from 10am until 4pm.

3. The parties also agreed that the father would have a properly fitted car seat for the child and would come to collect her alone (the mother wished to be informed of who would be attending her house to collect the child).  The father will provide the mother with the address and telephone number of where the child will be spending time with him.  It was agreed that the father will give the mother 48 hours notice by email if he is not able to spend the ordered time with the child.  The parties have identified a place for changeovers.  The parties also agreed that the father would spend time with the child from 10am until 6pm on 26^th December this year.  The father agreed that in the event that the child is significantly distressed during his time with her, he will return her to the mother.

Issues in dispute

1. The issues between the parties that were unable to be resolved are:

   (i)The intervals between the changes in the contact regime;

   (ii)Whether the child will spend time overnight with the father, and, if so when that will be implemented and

   (iii) The mother seeks an order that in the time that the father has the child overnight, she is able to ring and speak to her each morning and afternoon. 

Expert Report

1. In March 2010, Dr R interviewed all of the parties and observed each with the child and prepared a report.  While it is unnecessary to canvass all of her report because of the significant degree of accord between the parties at this stage, she recommended that the father have overnight time with the child from when the child is three.  Obviously the child has just turned three. 

The Parties’ submissions

1. The Independent Children's Lawyer proposed that there be a stepped progression of increasing time spent between the father and the child leading to overnight stays from 10am on Saturday until 12pm on Sunday.  She proposed that there be a period of 4 weeks between the suggested stages of contact.  The father adopted the Independent Children's Lawyer’s proposed orders.

2. The mother submitted that there should be a period of 3 ½ months between the proposed increases in time between the child and the father. There was no particular reason advanced for the mother as to why there should be longer between changes to the regime as opposed to the Independent Children's Lawyer’s proposal.

3. It was further submitted that the mother opposed the making of an order providing for overnight contact and there being an automatic progression to overnight time.  It was said that in the event that the intended regime was working well, she would agree to overnight contact. 

4. On the mother’s behalf it was submitted that if she believed the increased regime was working well she would agree to implement overnight time between the child and the father or suggested that the matter could be returned to court for further consideration before the overnight aspect of the regime is implemented.

5. In this case, there appears to have been a significant history of conflict between the parties as each has deposed in the affidavits filed on the application.  The mother expressed reservations to Dr R about the father’s capacity to properly care for the child during his time with her. Through various circumstances, the father’s contact with the child has not been as frequent or as regular as the orders of August 2009 might have produced.

6. The agreement reached between the parties on 13^th October represents, it seems, a significant change in the arrangements for the child.  It is probably appropriate that the process of increasing time between the father and the child should proceed somewhat slower than the one month intervals as proposed by the Independent Children's Lawyer.   While the determination of how long each proposed stage of the regime should take is somewhat impressionistic, I am of the view that each proposed stage should proceed for 8 weeks before moving to the next stage of contact.

7. It seems from the submissions made on behalf of the mother, that if the proposed increases of time between the father and the child progresses well, she would have no difficulty in there being a progression to overnight time.  While this may provide the mother with a sense of control over how the contact between the child and father progresses, it fails to provide the certainty that such regimes require against a background of tension and unsatisfactory arrangements. 

8. In determining what is in a child’s best interests, section 60CC(3) provides guidance and in particular subsection (l) requires a court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child”.  To make an order of the kind proposed by the mother would likely lead to further proceedings concerning the child.  Given the mother’s submission that she is not opposed in principle to overnight time with the father and child and considering the evidence before me, I am persuaded that it will be in the child’s best interests if the orders provided for staged, increasing time to be spent with the father and that the regime include a provision for overnight contact between the father and the child.

9. The Independent Children's Lawyer submitted that it was not appropriate to make an order that the mother telephone the child both morning and night if she is spending time overnight with the father because it could have a disruptive effect on the child, given her age.  While it may be understandable that the mother would be anxious to see that the child is managing with the overnight regime, I accept the submission of the Independent Children's Lawyer that to call twice a day for the short period that the child would be spending with her father once the overnight regime commences would be unnecessarily disruptive.   I will not make an order permitting the mother to contact the child while the overnight regime is in place and when the child is in fact spending just a little over 24 hours in her father’s care.  I am mindful in declining to make the order sought by the mother that by the time the overnight regime starts, the child and the father will have had increasing time with each other over a period of 16 weeks.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie Wallace delivered on 29 October 2010.

Associate: 

Date:         29 October 2010