BAILEY & BROOK

[2014] FamCA 638

FAMILY COURT OF AUSTRALIA

BAILEY & BROOK [2014] FamCA 638

FAMILY LAW – CHILDREN - Final Orders - where balance of issues resolved by consent orders - handover venue sole outstanding issue – handover previously conducted at a police station some distance from the father – where father seeks a new location equidistant from both parties – where mother opposes any alteration to existing handover location – best interests of the children – handover now to occur at a fast food restaurant – time spent by parties altered to accommodate travel undertaken by father.

Family Law Act 1975 (Cth) s 60B, 60CA, 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: 8 August 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 4 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dillon

SOLICITOR FOR THE APPLICANT: Calderwood Atkinson

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: K Speck & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boehm

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

IT IS ORDERED:-

1. That the orders made by consent on 4 August 2014 be dismissed.

2. That the parties have equal shared parental responsibility for the children C born … 2008 and B born … 2007.

3. That the said children do live with the respondent mother.

4. That the children spend time with the father as follows:-

   (a)During school terms on each alternate weekend from 5pm Friday until 7pm Sunday, extended to Monday if the Monday is a public holiday commencing 8 August 2014 and as from fourth term 2014 to commence on the first weekend of the new school term;

   (b)       One half of all school holidays as follows:-

   (i)For the short term school holidays as agreed or failing agreement from the conclusion of school until the middle Saturday at 5pm;

   (ii)For the long school holidays to be fixed from 5pm Boxing Day for three weeks in every year, and it is to be noted that the time the father would spend with the children pursuant to subparagraph (a) herein is suspended during school holidays.

   (c)For Father’s Day from 5pm the Saturday preceding until 5pm Sunday if not his weekend with the children;

   (d)That the children are to be returned to the mother for Mother’s Day at 5pm the preceding Saturday if the children are normally with the father.

5. That the place of handover in respect of paragraph 4 hereof shall be as agreed between the parties but in the absence of agreement shall be at the McDonald’s Restaurant, Adelaide.

6. That the father is able to obtain copies of normal school reports and photographs (at his cost) and have the right to attend normal school functions to which parents are invited to attend.

7. That the parties be restrained from denigrating each other in the presence of the children or allowing anyone else to denigrate the other in the presence of the children.

8. That the mother do ensure that the children have no contact with F.

9. That the parties do keep each other informed of the children’s health and wellbeing and provide medical reports thereto to each other as may come to hand and advise each other of any specialist or medical appointments to the effect that each party be at liberty to discuss the children’s medical condition with any of their treating doctors.

10. That the parties are to continue to communicate matters relevant to the daily care, welfare and development of the said children via a communication book which will pass with the children between the parties.

11. That the party spending time or living with the children do as soon as reasonably practical notify the other party in the event of any accident, emergency or serious illness concerning the children.

12. That the trial date of 25 August 2014 be vacated.

13. All proceedings are removed from the Active Pending List of Cases.

14. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 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

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the parenting arrangements for the children C born in 2008 and B born in 2007 (‘the children’). On 12 March 2014 I listed the matter for a four day trial before commencing 25 August 2014.

2. On 4 August 2014 the matter came before me for mention. On that day counsel for the parties and the Independent Children’s Lawyer (‘the ICL’) advised the Court that substantive agreement had been reached, the terms and conditions of which were set out in a draft Minute of Order which I received at the conclusion of the hearing.

3. The draft Minute of Order seeks orders by consent that the parties have equal shared parental responsibility, with the children to live with the mother. The children will spend time with the father on each alternate weekend from 4pm Friday afternoon until 5pm Sunday evening, and at other specific times such as school holidays and Father’s Day.

4. It was of significant advantage to the parties, and importantly the children, that the substantive and more contentious parenting issues were the subject of agreement.

5. The parties could not however, agree a venue at which the handovers were to take place. I stood the matter down for a brief period to enable the parties to seek further instructions. The parties were ultimately unsuccessful in their endeavours to negotiate what is a very narrow issue.

6. I determined that to further adjourn the matter would be to put the parties through unnecessary delay and expense, and would not be in the best interests of the children. To resolve the impasse I heard brief submissions from counsel, considered the draft Minute of Orders proposed and reserved judgment.

7. I raised the possibility that the time spent with the mother and father as provided for in the Minute of Order may require some adjustment to accommodate the eventual handover locations. I raised specifically the prospect of a delay in the time for collection of the children with a corresponding extension for the return time. Counsel and the parties agreed to that process and judgment was reserved at the conclusion of the hearing.

Background

1. The parties commenced a de facto relationship in January 2006 and separated in January 2012. There are two children of the marriage namely C born in 2007, and B born in 2008.

2. The father previously resided in Suburb G with his partner Ms H and her two children J and K, aged 6 and 5 years respectively, but now lives with his father and step-mother at Suburb L. The father is currently unemployed.

3. The mother has three children from previous relationships namely, F aged 14 years, M aged 16 years and N aged 17 years. Her two daughters are completing their secondary education and live with the mother at her Suburb O home. The mother has recently completed a course of study and is seeking employment in the Aged Care sector.

4. By way of an Initiating Application the father commenced proceedings in the Federal Magistrates Court (as it then was) on 17 April 2012 seeking orders that the child live with him and spend time with the mother as agreed. In her Response filed 22 June 2012 the mother sought orders that the children live with her and spend supervised time with the children at a Children’s Contact Service.

5. Throughout the course of proceedings the mother and father have both been critical of the other’s capacity to parent. The mother alleges the father has mental health issues which resulted in repeated suicide attempts. The father alleges the mother failed to protect the children from sexual abuse at the hands of her son F. However, the parties have carefully considered the impact of litigation on their young children and endeavoured to find an appropriate resolution to the proceedings.

6. On 4 May 2012 Federal Magistrate Simpson (as he then was) made orders by consent that the children live with the mother and spend time with the father each Saturday from 12pm to 4pm with handovers occurring inside the D Street Police Station.

7. Orders made by Federal Magistrate Simpson (as he then was) on 13 December 2012 provide that during the period of adjournment the children live with the mother and spend time with the father each alternate weekend with handovers to occur at the D Street Police Station or such other place as may be agreed.

8. In June 2013 allegations surfaced that the mother’s son, F, had sexually abused both C and B. He no longer has any contact with his step siblings and resides with the maternal grandparents.

9. On 14 November 2013 Dawe J made orders which provided during the period of adjournment the children live with the mother and spend time with the father each alternate weekend. All handovers not occurring at the children’s school were to take place at the D Street Police Station or such other place as agreed in writing between the parties.

10. An Amended Initiating Application was filed on behalf of the father on 2 May 2014 in which the father proposed the children live with the mother and spend time with the father on alternate weekends with handovers to occur at the Hungry Jacks in Suburb P. In her Amended Response filed on 16 June 2014 the mother sought orders in terms not dissimilar to those proposed by the father save that handovers do continue at the D Street Police Station. I note that the orders sought, and now contained in the draft Minute of Order, are supported by the Family Consultant, Dr E, in her report dated 3 July 2014.

11. It would appear the parties’ positions have tempered and are now aligned save and except for the disputed handover location.

12. The draft Minute of Order received at the hearing indicates the father’s time with the children on each alternate weekend is to commence at 4pm on Friday and conclude at 5pm on Sunday, with time to be extended to 5pm on Monday in the event of a public holiday.

Submissions

1. The mother sought both the Friday and Sunday handover occur at the D Street Police Station.

2. Counsel for the mother submitted the police station reassured the mother that the children would not be exposed to conflict during handovers, citing a history of aggravation. It was also the mother’s position that the current handover location was not only familiar to the children having attended the D Street Police Station since proceedings commenced in 2012, but also equidistant from both parties’ homes.

3. While not a feature of counsel’s submissions, the mother’s affidavit filed on 28 July 2014 indicates her preferred location also enables the mother to meet her parenting commitments in respect to her two daughters from a previous relationship. The mother must collect her younger daughter from the Q School in Suburb O at the conclusion of school before meeting her eldest daughter at the Adelaide Railway Station.

4. It was the father’s proposal that handover occur at the Suburb P Hungry Jacks. The father travels some distance from Suburb L in order to collect the children and puts forward the Suburb P Hungry Jacks as an appropriate midway point.

5. The father conceded the children did have a degree of familiarity with the D Street Police Station but did not view the use of a police station as necessary in the circumstances. Counsel for the father submitted that on previous occasions handover had in fact occurred at a location other than the police station with the agreement of all parties.

6. The ICL proposed the handovers occur at a location to be agreed by the parties or failing agreement, at the Hungry Jacks at Suburb P.

The Law

1. Part VII of the Family Law Act 1975 (Cth) (‘the Act’) sets out the legislative pathway in terms of the manner in which the Court needs to consider when making parenting orders.

2. The best interests of the children are required to be met and s 60B(1) provides the relevant considerations to satisfy the objects of s 60B.

3. Pursuant to section 60CA the Court must have regard to the best interests of the child. That consideration is to be considered as paramount.

4. Notwithstanding the issue to be determined is of narrow compass, I am obliged to have proper regard to the provisions of the Act in so far as they relate to parenting issues but in particular to the provisions of s 60CC(2) and 60CC(3).

5. It is the mother’s submission that the current location provides the mother with the security she feels is required. Counsel for the mother noted a history of aggravation in the proceedings.  The mother alleged she had been the target of physical violence and threats by the father but there was no suggestion by counsel for the mother that a physical or verbal altercation had occurred during handovers in the past two years nor any explanation as to why an incident is likely to occur in a public location other than at the D Street Police Station, if at all.

6. The concerns of the mother do not warrant the continued involvement of the D Street Police Station. It is not in the best interests of the children to observe the only interaction between their parents within the confines of a police station and within an atmosphere that such a setting necessarily creates.

7. In providing the draft Minute of Order the parties have demonstrated they are able to place the interests of the children ahead of their own misgivings and I see no reason why a transfer to some other public venue would reignite the conflict.

8. I am cognisant of the fact that the current arrangements require the father to undertake the balance of the travel at the commencement and conclusion of his time with the children. However, a handover location equidistant from both parties may be viewed as “fair” but geography is only relevant in so far as it impacts upon the best interests of the children, not the convenience of their parents.

Conclusion

1. Taking into account the submissions of the parties and the relevant sections of the Act I intend to make the McDonald’s Restaurant in Adelaide the designated handover location.

2. I also make orders which will alter the time each party spends with the children in order to accommodate the new handover location and to ensure the children’s time with their father is not diminished as a result of the travel he has to undertake.

3. The father’s time with the children will commence at 5pm on Friday to ensure the mother is able to attend to her commitments with respect to her two elder daughters. The father’s time with the children is then to conclude at 7pm on Sunday evening to accommodate the reduction in time spent with the children on Friday and the time spent by the father in travelling to and from the CBD for the purpose of handovers.

4. For those reasons I make orders as appear at the commencement of this judgment.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 8 August 2014

Associate: 

Date:  8 August 2014