Collett and Terence

[2008] FamCA 208

FAMILY COURT OF AUSTRALIA

COLLETT & TERENCE [2008] FamCA 208

FAMILY LAW  -  CHILDREN - parenting  -  interim residence  -  shared arrangements  -  changeovers

Family Law Act 1975 (Cth) s 60B(1), 60CC(1), 61DA, 61DAA(1) and (2)

FATHER: Mr Collett

MOTHER: Ms Terence

FILE NUMBER: MLC 2153 of 2008

DATE DELIVERED: 12 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 12 March, 2008

REPRESENTATION

THE FATHER: In person

COUNSEL FOR THE MOTHER: Ms. Pinnuck

SOLICITOR FOR THE MOTHER: Frank Randle Lawyers

Orders

1. That until further order the child … (“the child”) born … August, 2002 live with the mother as follows :

   (a)in the first week of a two week cycle, from 3:30 pm. (or the close of school) on Thursday until 3:30 pm. (or the close of school) on the following Monday;

   (b)in the second week of a two week cycle, from 3:30 pm. (or the close of school) on Thursday until 6:00 pm. on Sunday.

1. That until further order the child live with the father at all other times. 

1. That until the adjourned date changeovers which do not occur at the conclusion of a school day take place at the home of the mother. 

1. That on or before 17 March, 2008 the mother file and serve an amended application for final orders and an amended application for interim orders, together with any additional affidavits in support. 

1. That on or before 8 April, 2008 the father file and serve :

   (a)any responses to the applications for final and interim orders;  and

   (b)all affidavits on which he intends to rely. 

1. That the further hearing of all extant applications be adjourned to 10:00 am. on 14 April, 2008 in the judicial duty list. 

1. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

2. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

(A)That the father was provided at Court with copies of the following documents :

(i)application for final orders filed 7 March, 2008;

(ii)application for interim orders filed 7 March, 2008;

(iii)affidavit of the mother filed 7 March, 2008;  and

(iv)affidavit of the mother filed 11 March, 2008. 

(B)That the order in relation to changeovers which do not occur on a school day is made with the consent of the father on the basis it will operate until the adjourned date. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2153 of 2008

MR COLLETT

Father

And

MS TERENCE

Mother

REASONS FOR JUDGMENT

1. This case is about the parties' daughter, who was born in August 2002.  The mother filed an application for final orders, and an application for interim orders, on 7 March and sought that they be heard ex-parte.  Her solicitor, by letter, advised the father's parents of the pending proceedings and he has appeared today.  He had not been formally served with the applications and the affidavits in support, but I have had copies made and provided them to the father today.  I will not require formal service of those documents.  Any subsequent documents can be served on him at his address for service, once that is before the court. 

1. The evidence of the mother is contained in an affidavit filed on 7 March and a second affidavit filed on 11 March.  The father did not have that material until this morning, and has not been in a position to respond to it.  He has told me of some brief discussions with a solicitor who is not in a position to put a case forward today.  To his credit, and to the credit of the child’s mother, they have discussed the matter today and agreed on interim residence arrangements to operate until the matter returns to court.  This will involve an effective sharing of the week between mother and father.

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

1. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

1. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

1. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

1. At this stage, I am not going to make any order for equal shared parental responsibility.  As the child’s parents, you are jointly responsible for her.  Until a court makes an order to the contrary, that is the position.  Major long-term decisions – about obtaining a passport or a significant medical decision – involve bothy of you.  Her day-to-day care needs to be handled by the parent in whose care she is day-to-day. 

1. The parties have agreed that one week will be divided on a four day-three day basis and the following week on a three day‑four day basis.  There is some disagreement as to the changeover time.  The father is prepared to do the travelling, and thought that a changeover at 6.30 pm. or 7.00 pm., after dinner, might be best.  The mother advanced 3.30 pm. as a regular changeover time on a school day. 

1. The child started school this year.  As I said to the parties in discussion, little children are often very tired during their first term at school.  It can also be exciting for a child to be picked up by both parents at different times.  A parent collecting a child at school can share in the child's school life, meet their friends and their friends' parents, and then settle in for an evening at home with the child.  In my judgment that is likely to be a more comfortable transition for the child as she moves between her parents’ homes, than a changeover after dinner.

1. Until the case returns to court, changeovers on non-school days will occur at the mother’s home.

I certify that the preceding
10 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2008.

…………………………………………
Associate.