Callendar and Davenport (No 2)

[2010] FamCA 1219

FAMILY COURT OF AUSTRALIA

CALLENDAR & DAVENPORT (NO. 2) [2010] FamCA 1219

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where the father seeks provision to spend additional periods of time with the child over the school holidays – best interests – where the Court was of the view that a gradual approach to the increase of the child’s time with the father be adopted – orders setting out defined periods of time the child is to spend with the father

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Callendar

RESPONDENT: Ms Davenport

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 2033 of 2009

DATE DELIVERED: 14 DECEMBER 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 14 DECEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MR McGINN
SOLICITOR FOR THE APPLICANT:	SCALES & PARTNERS

COUNSEL FOR THE RESPONDENT:	NOT APPLICABLE
SOLICITOR FOR THE RESPONDENT:	MOTHER APPEARING IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MR CHILDS
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	LEGAL SERVICES COMMISSION

Orders

PENDING FURTHER ORDER OF THIS COURT AND FINAL DETERMINATION OF THE PROCEEDINGS

1. The parties have equal shared parental responsibility for the child C (“the child”) born … April 2004.

2. The father spend time with the child during school terms each alternate weekend from 10:00am on the Saturday until 5:00pm on the Sunday in accordance with the present rotation.

3. All handovers at the commencement and conclusion of each period of time the father spends with the child are to be conducted inside the Adelaide Police Station, with the mother to remain inside the Police Station for a period of 10 minutes after handover has been effected at the commencement of each period and with the father to remain inside the Police Station for a period of 10 minutes after handover has been effected at the conclusion of each period.

4. The mother is restrained and an injunction is hereby granted restraining the mother from:-

   (a)discussing these proceedings with or in the presence or hearing of the child and from permitting any other person to do so;

   (b)engaging the child in any form of therapy or counselling without further order of this Court SAVE AND EXCEPT in respect of any assessment of his learning delays and possible autism spectrum disorder.

5. The father spend time with the child from 12 noon to 5:00pm on 25 December 2010 with handovers to be effected by the father collecting the child from and returning him to the mother’s premises upon condition that the mother does not leave the front door of her premises and the father does not exit his motor vehicle during any handover during either of those handovers SAVE AND EXCEPT in the event of any emergency impacting upon the child.

6. The father spend time with the child on the following occasions:

   (a)from 10:00am on Saturday 18 December 2010 until 5:00pm on Sunday 19 December 2010;

   (b)from 10:00am on Saturday 1 January 2011 until 5:00pm on Tuesday 4 January 2011;

   (c)from 10:00am on Saturday 8 January 2011 until 5:00pm on Monday 10 January 2011;

   (d)from 10:00am on Friday 14 January 2011 until 5:00pm on Monday 17 January 2011;

   (e)from 10:00am on Saturday 22 January 2011 until 5:00pm on Tuesday 25 January 2011; and

   (f)from 10:00am on Friday 28 January 2011 until 5:00pm on Saturday 29 January 2011.

   UPON CONDITION that:-

   (g)the mother inform the father in writing of the child’s little athletics commitments including dates, times and places;

   (h)the father ensure that the child attend the little athletics meetings as advised.

7. The father’s alternate weekends to be spent with the child will recommence from 10:00am on Saturday 12 February 2011.

8. This matter be listed for first day Less Adversarial Trial proceedings before the Honourable Justice Burr at 10:00am on Monday 14 February 2011.

9. This matter be listed for continuation of trial proceedings, in the event that it remains unresolved, as a reserve matter in the special sittings of this court to be conducted over two weeks commencing on 7 March 2011.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2033  of 2009

MR CALLENDAR

Applicant

And

MS DAVENPORT

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today a continuation of a long running dispute between the parties.  Ex tempore judgments have been delivered respectively by both myself and Dawe J in these proceedings on 5 July 2010 and 20 October 2010.  The information contained in those reasons remains pertinent and relevant to the decision that I make today.  However, because of the detailed exploration of the issues contained in those two sets of reasons, in my view, it is not necessary to again explore in great depth all of the relevant factors that prompted those decisions at that time. 

2. Of a large number of issues and disputes between the parties, two loomed larger than the others.  One was the mother’s apparent reluctance at best to support a relationship between the father and their son, C, or at worst to actively obstruct the relationship.  The other issue was as to the child’s educational development prompted largely by him missing almost two terms of school in the previous year, a factor remarked upon in the Family Report provided in these proceedings.  I am satisfied from the information provided to me today and the materials now before me that there has been some improvement in relation to both those issues.

3. On 20 October 2010 Dawe J ordered that the father spend alternate weekends with the child from 10.00 on the Saturday until 5.00 pm on the Sunday.  Counsel for the father informs me that there has been compliance with those orders in most respects and the father has enjoyed the opportunity of spending some significant periods of time with his son.  There have been some complaints about compliance with other aspects of the order, particularly at handover, but I think it fair to categorise those as relatively minor in the scheme of issues raised by the parties for the Court’s consideration.

4. The other issue appears also to have been at least partly resolved in that annexed to the mother’s affidavit filed on 10 December 2010 is a copy of the child’s school report from the K Primary School, being the second semester report.  At what is identified in the mother’s affidavit as annexure “D5” are the teacher’s comments as follows:

   “It is good to see [C] at school on time and participating in all our lessons.  He has worked hard to learn, make friends and fit in with class and school expectations. 

   [C] now has several friends in his class and is learning to play safely in the yard.  He realizes he can choose to walk away from unsuitable activities and play happily with sensible friends from our class and other classes.  He has benefited from his Social Skills Yard Program facilitated by our class SSO [Ms E].”

   And then a little later in the same paragraph the teacher records this:

   “Due to improved attendance [C] now understands how school operates and this has reduced his anxiety.  He is a child who benefits from a regular, stable routine.  I enjoyed teaching [C] and  am sure he will continue to make progress in 2011 with ongoing support from home and school.”

   As I said, such information is encouraging.

5. Due to the exploration of all of the other factors in the aforementioned ex tempore reasons of Dawe J and myself, in my view it is not necessary to explore all of the relevant factors of Section 60CC, although I certainly am mindful of all of them and have generally considered all of them in making my determination today. 

6. The father has indicated that it is his preference that the child live with him in the interim period.  For the very reasons I have just indicated and supported in my views by the Independent Children’s Lawyer, I do not deem that to be an appropriate order to be made today.  That particular issue, as I indicated in my reasons, and as Dawe J indicated in her reasons, is an issue for trial and I will accordingly make orders moving the matter towards trial today.

7. The father, in the event that I did not support his application that the child live with him during the interim period, has sought some additional time with his son on Christmas Day and over the December 2010/January 2011 Christmas school holiday period.  The mother has indicated that she has no objection to the father having some increased time with the child but has urged upon me caution in terms of it being a gradual increase in time.  She also has made mention of a number of activities that have been booked for the child during the period of time that the father seeks to spend with him.  The father has some long service leave due to him from 1 January 2011 and he has sought from me a block period of time with the child until the child returns to school.  In my view that is far too significant and dramatic an increase and that both the child’s and the father’s interests would be served by a more gradual and staged approach.  Again my view in that regard is supported by the Independent Children’s Lawyer. 

8. The mother has indicated her agreement today to the father spending time with the child on Christmas Day between 12 noon and 5.00 pm.  I support that arrangement.  The orders that I propose for the Christmas school holidays I have crafted in an effort to meet the commitments made for the child and to provide some additional time for the father with the child, but not to structure it in such a way as it is too dramatic an increase. 

I certify that the preceding eight (8) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 14 December 2010.

Associate: 

Date:  12 January 2011