Cardamone and Timmins

[2008] FamCA 112

FAMILY COURT OF AUSTRALIA

CARDAMONE & TIMMINS [2008] FamCA 112

FAMILY LAW – CHILDREN – Consent orders for the child to spend time with the father

APPLICANT: MS TIMMINS

RESPONDENT: MR CARDAMONE

INDEPENDENT CHILDREN'S LAWYER:

FILE NUMBER: MLF 1413 of 2006

DATE DELIVERED: 19 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 19 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.A. Pannifex

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Reid

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN'S LAWYER COUNSEL: Mr P.A. Hannan

INDEPENDENT CHILDREN'S LAWYER SOLICITOR:

Orders 

1. Orders in accordance with the minutes of the final consent orders dated today's date.

2. I direct that they remain on the court file.

3. The solicitor for the mother will prepare the orders within seven days.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1413 of 2006

MS TIMMINS

Applicant

And

MR CARDAMONE

Respondent

REASONS FOR JUDGMENT

1. This is a case involving parenting arrangements for a little 6½‑year‑old girl.  Her parents separated some time ago, in 2001.  Today they have mainly agreed on orders to take the matter further.  The orders they have agreed are largely based on the Family Report writer's report and are largely the orders proposed by the Independent Children's Lawyer (the ICL), with a few discrete issues that they have asked me to decide.

2. By way of background I note that the child lives with her mother.  She has not seen her father since about July last year although she has been having regular and quite extensive telephone contact with him.  Before July 2007 she was seeing him every alternate weekend for about two hours at the F Contact Centre between 2004 and 2006.

3. A number of matters are clear from the material:

   ·The child’s father has suffered some serious mental health issues, but he is now stable and going well from a health point of view. 

   ·The child’s mother is doing a fine job raising her.

   ·The mother is not trying to be obstructive about ongoing contact between the child and her father, but that she has some genuine anxieties about it. 

   ·The father has been absolutely consistent in his desire to be a part of the child’s life and has been consistent in making efforts in that regard.

   ·Although tentative in some ways, the child showed fondness towards her father in the course of the preparation of the recent Family Report.

   ·The agreed orders today are designed towards fostering the child’s relationship with her father, with a view to moving it more and more, and absolutely as far as possible, to a relationship which the child can enjoy independently with her father so that he fulfils an important part of her life.

4. Today the issues are relatively limited in the sense that it has been agreed that the child will continue to live with her mother and that her father will be spending periods of several hours with her on a reasonably regular basis in the presence of the mother and other supervisors, with a view to the parties sitting at the Victoria Legal Aid Round Table Conference Centre to try to then move the case further ahead in 12 months’ time.

5. The first issue for me is the frequency of time the father will spend with the child.  The ICL has asked me to make orders for the time that the father will spend with the child to be on a monthly basis.  The mother supports that.  The father wants it to be each three weeks, not four weeks.

6. It was put on the basis of each four weeks by the ICL and the mother because that was the proposal very strongly supported by Mr O.  Mr O is the Family Report writer.  His professional opinion was that once a month is the appropriate child-focussed period at present.  The ICL submitted that underpinning the Report is the hope that if things are taken step-by-step, in a manner with which the child and the mother can cope, then the mother will step back more and more, and the father will be able to step forward more and more, hopefully to take a more and more active role in the child’s life.

7. It was emphasised for the mother that it would be more appropriate for the father to see the child on a monthly basis because it could then be co-ordinated by the mother with her care of her three other children on a fortnightly weekend basis. 

8. Mr Reid, for the father, put very cogent and well-articulated submissions.  He made it clear that the father is extremely respectful of Mr O’s report and that he has been, despite his desire to spend more and more time with the child, appreciative of the need to take things slowly.  Mr Reid took me through the history and the fact that before the time that the father was spending with the child stopped altogether in July last year, because the supervisor was no longer available, the period had in fact been built up so that the father was spending a longer period with the child.  The father is thus keen to have at least 18 instead of 12 occasions, in order to build the relationship with the child, before things are re-visited at the proposed round-table conference meeting.

9. The father is also keen to have periods of three hours, building to four hours at a time sooner than the ICL or the mother supported.  Counsel for the ICL, again on the basis of Mr O’s Report, suggested that for the next four months they spend two hours together, then three hours over four months, and then four hours for the final four months before the issue is re-considered.  That was supported by the mother. 

10. The third issue before me related to special days and how they should be worded in the order.  I will make some changes. 

11. This is the sort of case that is difficult for me in that both parents have quite reasonable perspectives.  When the mother raises concern, they are genuinely and dearly-held concerns, and much of the history has set the scene for those concerns.  The father is equally genuine and heartfelt in how dearly he wants to move his relationship forward with the child, and what he is saying in that regard is a reasonable perspective. 

12. It is fortunate that the Family Report is detailed, balanced and helpful.  I was impressed with Mr O’s Report.  Rarely do I read a report and get such an insight into a family and its members, and rarely do I read a report that captures the essence of how all the adults are feeling in such a respectful manner.  By the end of that report I had some understanding not only of the child’s parents’ perspectives but also the paternal grandmother's perspective. She is important to the case. 

13. I must be guided by Mr O’s expertise.  I am satisfied that he had to the forefront of his thinking the desire to enable things to move forward for the child in a way and at a pace with which she can cope.  Accordingly, I am satisfied that it is in her best interests if at this time the period between visits is four weeks.  I am satisfied too that the time should start at two hours and move forward in the way that the Independent Children's Lawyer has proposed.  I have indicated in discussion that I am sympathetic to the position put by Mr Reid for the father that the special occasions need to be more specific. 

14. There is now a consensus that Father's Day will be written in as a certain time; that Boxing Day will be written in as a certain time; and that there will be a time sufficiently proximate to the child’s birthday that the father can enjoy that with her.  I will leave Easter to fall where it does, because of the mother's other commitments with the children this year.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau.

Associate: 

Date:  19 February 2008