FAMILY COURT OF AUSTRALIA
Bradbury & Lander (No. 3) [2020] FamCA 982
File number(s): CAC 239 of 2017 Judgment of: GILL J Date of judgment: 25 November 2020 Catchwords: FAMILY LAW – Interim proceeding – cross applications to vary interim orders with respect to the 2020/2021 Christmas school holiday period – best interests of the child – interim orders made – application for appointment of a Single Expert – application dismissed – application for interim property relief – uncertainty as to whether the orders sought would undermine the making of final orders as to the property – application dismissed Legislation: Family Law Act 1975 (Cth) ss 60CC, 62G, 79, 80 Cases cited: Strahan v Strahan (Interim Property Orders) [2009] FamCAFC 166
Wenz v Archer (2008) 40 Fam LR 212
Zadenev v Zadenev [2013] FAMCA 838
Number of paragraphs: 36 Date of hearing: 20 November 2020 Place: Canberra Solicitor for the Applicant: Infinity Legal Solicitor for the Respondent: Self-representing Solicitor for the Independent Children's Lawyer: Ms Burgess ORDERS
CAC 239 of 2017 BETWEEN: MR BRADBURY
Applicant
AND: MS LANDER
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
25 NOVEMBER 2020
THE COURT ORDERS THAT:
1.Orders 12 and 13 of the Orders of 24 January 2019 are discharged.
2.It is noted that the orders currently provide for Y to live with the father.
3.That the child Y shall spend time with her mother during the 2020/2021 Term 4 school holiday period as follows:
(a)From 2 pm 23 December 2020 to 12 pm 25 December 2020;
(b)From 2 pm 31 December to 2 pm 2 January.
(c)From 3 pm Saturday to 3 pm Monday each weekend of the holidays beginning on Saturday 9 January 2021, except for the last weekend of the holidays on which weekend there shall be no visit.
4.Unless agreed otherwise in writing, the changeovers for school holiday time shall take place in Canberra.
5.The parties may vary the arrangements provided for in these Orders by agreement in writing (including by text message).
6.Changeover during the 2020/2021 Term 4 school holiday period shall occur as follows:
(i)Where a party nominates to the other parent in writing (including text message) a third party to undertake that handover, then the third party may deliver Y to the other parent's home.
(ii)In the absence of a nominated third party, handover shall occur on R Street outside the Suburb D police station, within view of the station security cameras, and the parents shall not approach within 3 metres of each other or communicate directly other than by text message.
Single Expert
7.The mother’s application for the appointment of a single expert is dismissed.
Family Report
8.Further order to that of the orders made on 5 November 2020, pursuant to s 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of…
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- [2020] FamCA 982
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CaseChat Overview and Summary
The court was required to determine the best interests of the child, Y, in relation to proposed parenting arrangements for the upcoming school holidays. Additionally, the court had to consider whether to appoint a single expert and whether to grant interim property relief, assessing if such relief would prejudice the final property settlement.
Gill J made specific orders regarding Y's time with her mother during the Term 4 school holidays, modifying the existing arrangements. The application for the appointment of a single expert was dismissed. The court also ordered that a Family Report be prepared by a Family Consultant, outlining specific areas for consideration, including the child's relationship with both parents, protection from harm, the impact of changes in circumstances, and the capacity of each parent to meet the child's needs. The mother's application for interim property relief was dismissed, with the court noting uncertainty as to whether the orders sought would undermine the making of final property orders. The matter was adjourned for further directions, with a tentative trial date set for June 2021.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. Orders 12 and 13 of the Orders of 24 January 2019 are discharged.
2. It is noted that the orders currently provide for Y to live with the father.
3. That the child Y shall spend time with her mother during the 2020/2021 Term 4 school holiday period as follows:
(a) From 2 pm 23 December 2020 to 12 pm 25 December 2020;
(b) From 2 pm 31 December to 2 pm 2 January.
(c) From 3 pm Saturday to 3 pm Monday each weekend of the holidays beginning on Saturday 9 January 2021, except for the last weekend of the holidays on which weekend there shall be no visit.
4. Unless agreed otherwise in writing, the changeovers for school holiday time shall take place in Canberra.
5. The parties may vary the arrangements provided for in these Orders by agreement in writing (including by text message).
6. Changeover during the 2020/2021 Term 4 school holiday period shall occur as follows:
(i) Where a party nominates to the other parent in writing (including text message) a third party to undertake that handover, then the third party may deliver Y to the other parent's home.
(ii) In the absence of a nominated third party, handover shall occur on R Street outside the Suburb D police station, within view of the station security cameras, and the parents shall not approach within 3 metres of each other or communicate directly other than by text message.
Single Expert
7. The mother’s application for the appointment of a single expert is dismissed.
Family Report
8. Further order to that of the orders made on 5 November 2020, pursuant to s 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents;
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence including an assessment of any such risk that the child may be exposed to and the impact both in the short term and long term in the event that the child is exposed to abuse, neglect or family violence;
(c) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) Either of the child’s parents; or
(ii) Any other child or other person (including a grandparent or other relative of the child including a sibling or step-sibling) with whom the child has/have been living;
including an assessment of the nature of the child’s present and prospective attachments in terms of the orders sought by each of the parties;
(a) The capacity of:
(i) Each of the child’s parents; and
(ii) Any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs and any circumstances that may diminish that capacity by reason of physical disability, mental disability or risk of abuse;
(a) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Family Consultant thinks are relevant;
(b) If the child is an Aboriginal or Torres Strait Islander child:
(i) The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) The likely impact any proposed parenting order will have on that right;
(c) The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents;
(d) Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child;
(e) Any other fact or circumstance that in the opinion of the Family Consultant is relevant.
9. In preparing the family report the Family Consultant is entitled to have regard to the trial affidavits of the parties and their witnesses.
Interim property settlement
10. The mother’s application for interim property settlement is dismissed.
IT IS FURTHER ORDERED THAT
11. The trial is tentatively listed for a period of 5 days commencing at 10 am on 7 June 2021.
12. Unless a party has otherwise sought relief from the Court, the trial listed for June 2021 is to be an in-person appearance.
13. The matter is further adjourned for further directions to 12 pm on 4 February 2021 on which occasion the matter will be an in-person appearance.
14. The next time the matter is listed either before the Registrar or the Court it is a designated a court event for the notification of costs pursuant to Rule 19.04.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bradbury & Lander has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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