Carlow and Carlow (No 2)

[2010] FamCA 1239

FAMILY COURT OF AUSTRALIA

CARLOW & CARLOW (NO. 2) [2010] FamCA 1239

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Carlow

RESPONDENT: Ms Carlow

FILE NUMBER: MLC 7377 of 2010

DATE DELIVERED: 16 December 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hoult

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Mr Spicer

SOLICITOR FOR THE RESPONDENT: Kelly & Associates

Orders

1. That the application for variation of the orders made on 21 September 2010 is dismissed.

2. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file noting that paragraph 3 is an order of the Court.

3. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

4. That the parties and their practitioners attend a conciliation conference on a date to be advised by the Registrar.

5. 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 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7377 of 2010

MR CARLOW

Applicant

And

MS CARLOW

Respondent

REASONS FOR JUDGMENT

1. In this matter, I do not propose to alter the current arrangements despite the evidence of Mr P, that is, that C and D will spend time with the husband from Friday through to the Wednesday in alternate weeks.  In the reasons that I gave on 21 September this year, I made the observations that the evidence could not be tested, and I said I was making a holding position to give the children some certainty and routine in their lives.  Nothing I have read or heard today alters that philosophical position.

2. On 29 September, I noted that the husband had said that the children wanted more time with him and that the children and the parties were to shortly see Mr P.  In paragraphs 46 to 73 of the reasons I gave, I set out the Court’s responses to the legislative pathway.  Nothing I have read today convinces me to alter what I there said.  In taking into account what Mr P says, I have decided not to alter the existing orders.

3. For the parties’ benefit, I make the following comments:  I have taken into account in paragraph 12 of what Mr P says about the focus of the parents;  paragraph 13, when he refers to the difficulties being connected with parental power;  paragraph 22, where he refers to the husband’s capacity to combine work and parenting duties;  paragraph 31, where the husband says that he desires to be involved as a parent and to have a set of rules and structure around his time with the children.  I specifically take into account paragraphs 34, 35, 36, 38 and 41 as to C’s views.

4. There is a very clear message to the parents rather than to the Court which is set out in paragraphs 40 and 54 of the evidence of Mr P.  I take specifically into account paragraphs 43, 45 and 46 of Mr P’s evidence as to D’s views.  I take into account also that Mr P observed that D is coping relatively well despite the parental dispute.  Mr P concluded at paragraph 55 that the Court needed to decide for the children’s sake, because otherwise, the children would have to disappoint one parent.  I would add to that that if the children decided, they would probably disappoint two parents.

5. At paragraph 57 of his evidence, Mr P opined that he strongly, and I emphasise the word “strongly”, recommended that the status quo remain but there be consideration for the children’s individual needs.  It is difficult to know exactly what those needs are when the parents are focusing on their own needs.  In my view, the draft provided by Mr Spicer, for the wife, provides amply for those considerations, and in particular, I note the notation.

6. At paragraph 60 of his evidence, Mr P suggests that D have an option of an extra night, failing parental negotiation.  It is difficult to see how there will be parental negotiation, having regard to the polarised positions.  But the difficulty I have also with Mr P’s view is that it puts D in the position where he has to adopt a position, which in fact Mr P seems to recommend against in paragraph 55 of his evidence, which is putting the child in the position where he is making a decision.  I see no reason, therefore, at this stage to change the orders that I made in September on the basis that they appear to me to be in the best interests of these children.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 December 2010.

Associate: 

Date: