Boston and Cambrook

[2007] FamCA 439

FAMILY COURT OF AUSTRALIA

BOSTON & CAMBROOK [2007] FamCA 439

FAMILY LAW - CHILDREN - With whom a child shall spend time - Less Adversarial Trial procedure - Orders made for contact between a father and the child in circumstances where he lives in regional Western Australia and the mother in Melbourne – Recommendation that Family Consultant attends regional Western Australia in order to facilitate a fair trial

Division 12A of the Family Law Act 1975 (as amended)

APPLICANT: MR BOSTON

RESPONDENT: MS CAMBROOK

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1105 of 2006

DATE DELIVERED: 26 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 26 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms E.A. Benjamin

SOLICITOR FOR THE APPLICANT: Goddard Elliott

COUNSEL FOR THE RESPONDENT: Mr I.N. Brewer

SOLICITOR FOR THE RESPONDENT: Patricia Samson

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms P.J. Treyvaud

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Pearsons

Orders

1. That paragraph 3 of the Orders of Senior Registrar FitzGibbon made on 7 July 2006 and varied by Order 1 of the Orders of the Honourable Justice Guest on 16 October 2006 be discharged.

2. That until further Order the child, a daughter, born in November 2004 spend time with the father as follows:

   (a)From 28 April 2007 to 12 May 2007;

   (b)For two consecutive weeks commencing July and early September 2007;

   (c)By way of telephone communication each Wednesday between 7:00pm and 7:30pm AEST;

   (d)Such further and other times as the parties may agree.

3. That save for Paragraphs 1, 3 and 10 of the Orders of 16 October 2006 the Orders otherwise continue in full force and effect until further order.

4. That during the times the child spends with her father he shall ensure that she communicates with her mother by way of telephone each Wednesday between 7:00pm and 7.30pm AEST and by way of Webcam in the same terms as Paragraph 2 of the Orders of 16 October 2006.

5. That changeover take place at Tullamarine Airport or such other place as may be agreed.  The father advise the mother of the flights the child is travelling on 14 days prior to the time she spends with her father.

6. That for the purposes of air travel the father purchase tickets for himself, his mother or sister, and the child and advise the mother 14 days prior to the commencement of his time with the child.

7. That until the further hearing the father pay for his airfares and each of the mother and father pay one half of the child’s airfares, the mother to reimburse the father her share,  and the father be entitled to seek credit against his payments of child support in relation to airfares associated with his time with the child.

8. That the mother forthwith authorise the local Day Care Centre, her general practitioner  and any other educational or health care professional involved in the child’s care to provide to the father, at his expense, if any, information and details as to the child’s progress and further authorise his direct communication with any such person.

9. That each of the mother and the father keep the other advised of their mobile telephone numbers and advise the other of any medical emergency in relation to the child as soon as practicable.

10. That the mother keep the father advised of the child’s routine, eating habits, developmental milestones 14 days prior to any time to be spent with the father.

11. That the father advise the Independent Children's Lawyer upon his commencement of the parenting course with Anglicare and provide a certificate of completion of same.

12. That the parties, the child and any other person requested by the Family Consultant attend upon the Family Consultant for the purposes of assessment and preparation of a report and it is noted that, if practicable, the Family Consultant travel to regional Western Australia.

13. That the final hearing of this case be set down for hearing before the Honourable Justice Guest in so far as it is practicable to do so, for final determination in the month of October 2007.

14. That leave be granted to each of the parties to file and serve an Affidavit not later than 20 September 2007 by each of them and any witness is relation to the following:

    (a)Progress of the time spent by the child with her father;

    (b)Progress of the communication between the child and each of her parents, and between themselves.

15. That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.

16. Direct that the Minutes to be engrossed by the Applicant. 

17. That 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.

THE COURT NOTES

A.The father shall depart Tullamarine Qantas Terminal Flight Number … at 12.15pm on Saturday 28 April 2007, and the mother shall deliver the child to the Father at Qantas Domestic Check-in at 11:00am.

B.That on the occasions when the mother is unable to attend Tullamarine for changeover she will arrange a suitable delegate.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1105  of 2006

MR BOSTON

Applicant

And

MS CAMBROOK

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me pursuant to Division 12A of the Family Law Act 1975 (as amended), under the umbrella of the Less Adversarial Trial procedures. I need not record into this short ex tempore judgment the background to the matter as it has been adequately set out in my earlier ex tempore judgment delivered 16 October 2006.

2. The proceedings returned to court this day pursuant to the orders made by me on 16 October 2006.  I have heard preliminary submissions this morning from Ms Benjamin, who continues to appear for the applicant father, from Mr Brewer, who continues to appear for the respondent mother, and Ms Treyvaud, who appears for the Independent Children's Lawyer.

3. I do not propose to record into these short remarks the actual submissions made this morning save to say that the matter was stood down for negotiation between the parties following discussion and some evidence from the Family Consultant, Mr A.  The parties have come to a commonsense and dignified agreement which augers well, in my view, for the future.

4. In the course of his evidence, Mr A said that it appeared to be common ground that contact per se was proceeding well, which certainly advances the best interests of the child.  He said that the parties could profit by further contact between the father and the child pending the final hearing, and that there would be value in “testing that environment”.

5. The parties, as I have made clear in my judgment of 16 October 2006, are subject to the tyranny of distance in that the mother lives in a northern suburb outside Melbourne, and the father lives a regional town in the state of Western Australia.  No two places of residence could be further apart and which circumstances make the process of negotiation and adjustment reasonably difficult.  This strain has been overcome in a dignified way by the parties and, I suspect, assisted with recommendations from Mr A and Ms Treyvaud on behalf of the Independent Children's Lawyer.

6. There will be substantial contact between the father and the child between now and the proposed trial date in October 2007.  This will enable the maintenance and development of "a meaningful relationship" between them so that one can return to court with that concept sitting seamlessly within the provisions of the amendments to the Family Law Act 1975.

7. There are two further matters I propose to add.  Firstly, paragraph 12 of the Minutes of Consent Orders deals with the preparation of a family report by Mr A, and provides:

   “For the purposes of his assessment and preparation of a report it is noted that, if practicable, the Family Consultant travel to [regional], Western Australia.”

8. I am conscious of the cost implications of that travel, but also I am conscious of both parties having what I would describe as a fair trial.  This will be enhanced in the particular circumstances of these proceedings by the receipt of independent third‑party evidence being given of the living and general arrangements that are available in regional Western Australia.  I suspect that there would be a modest degree of disenchantment if that were not so. 

9. I appreciate furthermore that the financial resources of this court are severely strained but I propose to request that all measures possible be undertaken to ensure that Mr A be in a position to undertake his report in the dual environment of the parties which will be of immeasurable assistance to me in deciding the child’s future residence. 

10. It is clear that I can have regard to the mother's proposals in an environment with which I am familiar.  I have no idea about where the father resides at all.  I have no idea of the housing in which it is proposed that the child will reside on the father's application.  I can only be assisted by independent third-party evidence of an expert witness, such as the Family Consultant who can report on the environment and on his observations generally of the child’s sense of comfort and familiarity with the location and those within it.

11. I will direct that a copy of my judgment be transcribed, placed on the court file and made available to the parties.  I will also ensure that a copy be made available to the manager of the Melbourne Registry of the Family Court of Australia.

12. The second matter is this.  Paragraph 13 of the Minutes of Consent Orders initially provided that the final hearing of the case be set down for hearing before me and anticipated by the parties to commence on 1 October 2007.  I am not too sure that is possible at this stage.  However, that paragraph has now been amended to read that the final hearing of the contested application be heard “ ... insofar as it is practicable to do so for final determination in the month of October 2007.” 

13. I propose to bring to the attention of Listings that time be made available for the hearing in October 2007.  This is necessary as, by that time the child will have had two, maybe three, periods of contact in regional Western Australia, with her father.  Secondly, in the event that the court recognises the significance of what I have had to say about Mr A's attendance at regional Western Australia, then it would be “fresh evidence” which could have the potential to become somewhat stale if the trial of the matter were to proceed after that date, and perhaps into the year 2008.  In those circumstances it is my expectation that Listings will ensure, in order to provide a degree of certainty to both parties, who come to court in difficult circumstances, to work towards a trial date in that month. 

14. I congratulate the parties on having the dignity and the commonsense in coming to this current arrangement for the time to be spent between the child and her father.  It is a giant step forward in the best interests of the child in circumstances where each party has made concessions in an understanding and compassionate manner.

15. I mark the Minutes of the Proposed Consent Orders Exhibit “A”. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  16 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BOSTON & CAMBROOK