Claringbold and James

[2010] FamCA 451

FAMILY COURT OF AUSTRALIA

CLARINGBOLD & JAMES [2010] FamCA 451

FAMILY LAW – CHILDREN – Interim

APPLICANT: Ms Claringbold

RESPONDENT: Mr James

FILE NUMBER: MLC 3009 of 2009

DATE DELIVERED: 28 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Justice Bennett

HEARING DATE: 28 April 2010

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That this matter be set down for final hearing before me on 8, 9 and 10 September 2010 as the second matter in that list.

2. That the matter be listed for telephone mention on 6 August 2010 for directions for the final hearing.

3. That until further order the mother spend time with the child A born … December 1998 as follows:-

   a)     During school terms each alternate weekend from Friday afternoon until 6.00 pm on Sunday afternoon commencing on 7 May 2010;

   b)     For the first week of the June/July school holidays from Saturday morning 26 June 2010 to Friday 2 July 2010 at 6.00 pm; and

   c)     As otherwise may be agreed between the parties and confirmed in writing.

4. That the changeover point for time spent be W railway station and the time commence:-

   a)     on Friday afternoon in the context of paragraph 3(a) as close to 6.00 pm as possible having regard to the train availability; and

   b)     on the morning of the school holidays in the context of paragraph 3(b) commence as close to 10.00 am as possible having regard to train availability.

5. That until further order the mother be and is hereby restrained from causing permitting or suffering any adult other than a blood relation of the child to sleep or stay overnight at her residence when the child is spending time with her during school term.

6. That the mother permit the child to retain use of any mobile telephone that the father provides for the child but the father not request the child to ring him during time spent periods or himself call the child unless it is necessary to do so.

7. That by not later than 1 June 2010 the father advise the mother in writing of the outcome of the treatment to the child’s ankle NOTING THAT the child has an appointment to see a specialist on 30 April 2010.

8. That the father’s address for service be noted in the records of the Court as … and the telephone number remains the same.

9. That for the avoidance of doubt the current orders that provide for telephone communication between the child and the respective  household of the other parent continue in full force with the effect that :-

   a)     when the child is with the mother during school holiday time the child will place a call to the father between 6.00 pm and 6.30 pm; and

   b)     on Wednesdays and Sundays, when the child is not spending time with the mother, the child will place a call to the mother between 6.00 pm and 6.30 pm.

10. That the mother do all acts and things necessary to contact the proper officer of the school attended by the child, S Primary School, to obtain details of what homework it would be appropriate for the child to undertake when she is in the care of the mother each alternate weekend for approximately half an hour on Friday evening.

IT IS DIRECTED

1. That a Registrar of the Court serve a sealed copy of this Order on the proper officer of the said school by pre-paid post.

IT IS FURTHER ORDERED:

1. That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

IT IS NOTED BY THE COURT that the father proposes to amend the orders sought and his response to include an application that the mother not be entitled to make any more applications about the child without first obtaining leave of the Court to do so.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3009 of 2009

MS CLARINGBOLD

Applicant

And

MR JAMES

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me for mention following the preparation by Ms B, family consultant, of an assessment in relation to A, born in December 1998, and her parents.  The application before the court is the mother’s application filed 13 January 2010 to spend time with the child each alternate weekend from 6 pm on Friday to 6 pm on Sunday and half of school holidays.  The father’s response filed 19 March 2010 opposed the mother’s application.  However, his position at court today is in accord with the recommendation of Ms B.

2. This matter has a very long litigation history which has been rehearsed in earlier judgments of the court, including a judgment by me on 2 August 2007.

3. Ms B was cross-examined on a limited basis by each party this morning.  The assessment prepared by Ms B is a thoughtful document setting out her opinions.  Limited as it is, because it is an assessment and not a family report, it is evidence to which I give weight. 

4. As with all parenting matters, it is A’s best interests which are the paramount consideration.

5. There is a clear and concerning conflict between A’s best interests and the sad inability of the parents to cooperate with each other on nearly any matter concerning A’s needs.  This has now reached a stage where the Department of Human Services has advised Ms B that it considers that the conflict, if it continues, may be such as to justify the child being removed from the care of both parents in order to insulate her from the conflict.  I sincerely hope that does not happen but the parents are now on notice.

6. The two most significant messages in Ms B’s report are first and foremost that the conflict between the parents is having a deleterious effect on A now, and that those adverse consequences will escalate into the future.  Second, that the child needs to see more of her mother than she does at the moment. 

7. I have allocated a final hearing of this matter to occur prior to the September school holidays and I will make holding orders which provide for the time between now and then.  I will be determining this matter, as I indicated, prior to the September school holidays.

8. There is no opposition either way to the time being extended to each alternate weekend from approximately 6 pm, such as train timetabling will allow, on Fridays, to 6 pm on Sunday.  The changeover point will be W Station. 

9. I am satisfied that these orders are in A’s best interests bearing in mind what benefits there are to her of having a relationship with both parents and, secondly, to insulate her from the psychological harm associated with severe parental conflict. 

10. I omitted, when I pronounced the orders earlier, to make provision for the homework that the child is to do on Fridays when she sees her mother.  I’ll now pronounce an order to that effect.

11. The concerns of A’s school about her academic process appear in Ms B’s report in the context of Ms B having contacted the school.  There are two benefits to A undertaking some limited homework task in the extended time she now has with the mother.  The first is that that homework will be done and will be done well and allow her to maintain a routine of doing homework after school.  The second benefit is that the mother will be directly involved in A’s academic work, which will be positively appreciated by A and will mean that the mother is more fully involved in A’s life.

12. The only other matter which I have already ordered is a prohibition against the mother having adult persons sleep or stay overnight at her residence other than blood relatives of A’s during term time.  I have made this restriction whilst acknowledging that the mother does not oppose it because she says that it does not occur.  The fact of the matter is if I had thought that there would be another non-relative adult sleeping over with the mother and A during term time, I wouldn’t have extended the time that A has with the mother.  However, as there is no opposition and there will be no sleep overs of unrelated adult persons, the extended time is, in my view, appropriate. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  7 June 2010