Bailey and Brook

[2013] FamCA 907

FAMILY COURT OF AUSTRALIA

BAILEY & BROOK [2013] FamCA 907

FAMILY LAW – CHILDREN – Interim Orders – with whom a child lives – with whom a child spends time – best interests – orders made for the children to live with the respondent mother and spend time with the specified father pending final determination of the matter.          

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Bailey

RESPONDENT: Ms Brook

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of South Australia

FILE NUMBER: ADC 1389 of 2012

DATE DELIVERED: 14 November 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 14 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dillon

SOLICITOR FOR THE APPLICANT: Calderwood Atkinson

COUNSEL FOR THE RESPONDENT: Mr Hemsley

SOLICITOR FOR THE RESPONDENT: Michael Speck And Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Horvat

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission Of South Australia

Orders

DURING THE PERIOD OF THE ADJOURNMENT AND PENDING THE TRIAL IT IS ORDERED THAT

1. The children B and C do live with the mother.

1. The father spend time with the children as follows:

(a)during school terms each alternate weekend from 10.00 am Saturday to 5.00 pm Sunday commencing on Saturday 16 November 2013;

(b)during 2013/2014 school holidays from 10.00 am Friday to 4.00 pm Monday each alternate weekend when the father’s time would ordinarily fall;

(c)       from 3.00 pm Christmas Day through to 4.00 pm Boxing Day;

PROVIDED THAT each night is spent at the paternal grandparents’ home and with either the paternal grandfather or paternal step-grandmother being present.

1. All handovers not occurring at the children’s school take place inside the D Street Police Station or such other place as may be agreed in writing between the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bailey & Brook has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1389 of 2012

Mr Bailey

Applicant

And

Ms Brook

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an interim application in relation to the two children of the parties B born in 2007 and C born in 2008.  They can be described as quite young children.  Proceedings have been on foot for a considerable time with the matter originally in the Federal Magistrates Court (as it then was) and being transferred to this Court earlier this year.

2. The Court has the benefit of the Family Consultant’s report prepared by Dr E on 25 February 2013. That report makes it clear that it is a tentative report taking into account what the writer describes as “lack of important information about the children’s circumstances”.  Those tentative recommendations form the basis, to a certain extent, of what the father is now seeking by way of interim orders. 

3. There has been some agreement reached as to the interim orders.  However, there is a substantial dispute about the time the alternate weekend time with the father for the children, should commence and conclude. 

4. The father is seeking that the alternate weekends which commences as soon as the school returns in the beginning of 2014, should be from the conclusion of school on the Friday to the return of school on the Monday.

5. It is anticipated by the commencement of school next year, both children will both be attending school. 

6. That arrangement is opposed and the mother and Independent Children’s Lawyer who propose that the order, which was made on 19 December 2012 by FM Simpson (as he then was) continue.  This provides each alternate weekend from 10.00 am Saturday until 4.00 pm Saturday, on condition that each night is spent at the paternal grandparent’s home and with either the paternal grandfather or paternal step-grandmother being present.

7. Those conditions are agreed conditions for the time for alternate weekends and any overnight time. 

8. The question therefore remains whether the time which the children are spending with the father should now be extended, pending the final determination of these matters by way of trial.  It is not likely, as previously indicated, that this trial would be listed before February/March 2014.  It may indeed be much later than that, as any such suggestion is a guess.

9. It is therefore of significance for the parties and the children, to take into account the necessary matters in determining what is in the best interests of the children, as so far as that can be done, bearing in mind that there are significant factual matters in dispute between the parties and those difficulties which have resulted in the tentative recommendations being made by the Family Consultant.

10. In this case, with the history of the matter and the difficulties in the relationship between the parties, even on an interim basis, the presumption of equal shared parenting and shared or significant time, is rebutted.  The breakdown in the relationship between the parties and the allegations each make concerning the capacity of each of the parents and their attitude to their duties as parents supports this rebuttal.

11. One of the significant matters which has arisen since the report was prepared, are the events which led to the orders being made by Senior Registrar Fitzgibbon in June of this year, following the children being retained by the father. 

12. There have been difficulties expressed as far as the determination of the parties’ capacity and attitude towards parenting, which cannot be resolved on an interim basis on the affidavit material which has been filed in the Court.

13. The Court must, however, consider the factors which are required to determine what is in the best interests of the children.  The primary considerations are the protection of the children from harm and the benefit to the children of having a meaningful relationship with each of the parents and other significant persons. 

14. In this case, the question of the change in circumstances, which is one of the factors in section 60CC is a significant matter taking into account in particular the ages of the children and some of the disruption which has occurred thus far in their lives.  Therefore, whilst there are other factors under section 60CC to which I have given consideration, I am convinced that on an interim basis the slow change would be better for these children and allow them a greater opportunity to adapt to the changes which are being made.

15. It is of some importance that the mother has agreed to extend the time for the school holiday period from 10.00 am Friday to 4.00 pm Monday over each alternate weekend when the father’s time would ordinarily fall.  The question then is whether such an extended arrangement should appropriately continue when the children are to resume or start school in 2014.

16. I accept the submissions of the counsel for the Independent Children’s Lawyer that, with the start of school, particularly for the youngest child, that will be a significant alteration for the child and may require some adaptation by the child.  Therefore it would not be appropriate at this stage to increase the time during school term to one where at the end of the school week, instead of going to the home of the mother, the children would go to spend time with the father each alternate weekend.

17. I consider that is a factor which would indicate that it is in the best interests of that child, and therefore both children, that during school term the arrangements which have been in place for some time, providing for the children to go Saturday morning until Sunday afternoon should continue. 

18. I am concerned about the travel however and I am told that the distance between the parties’ homes is 75 kilometres.

19. The handover takes place at the D Street police station.  The children are brought to the D Street police station and then travel a significant distance.  When it resumes in late January 2014, it will be summer.  I will hear from counsel arrangements being extended by an hour, so that it is 9.30 am in the morning and 4.30pm in the afternoon, giving the father and the children an opportunity to spend more time together.

20. Having heard further submissions I extend the time so that the alternate weekend time during school term is from 10.00 am Saturday until 5.00 pm Sunday. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 November 2013.

Associate: 

Date:  22 November 2013