Constance and Constance

[2009] FamCA 809

FAMILY COURT OF AUSTRALIA

CONSTANCE & CONSTANCE [2009] FamCA 809

FAMILY LAW – CHILDREN – Interim parenting orders – Time the Child returns from spending time with the Father in Melbourne – Responsibility for drop off in Brisbane for the Father’s contact – Cost of psychiatric report to be borne by the Father in the first instance
APPLICANT:	Mr Constance

RESPONDENT: Ms Constance

FILE NUMBER: BRC 4625 of 2009

DATE DELIVERED: 24 August 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 24 August 209

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMillan of Senior Counsel appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT: Hopgood Ganim, Solicitors

COUNSEL FOR THE RESPONDENT: Mr Fleetwood of Counsel appeared for the Respondent Mother

SOLICITORS FOR THE RESPONDENT: Murdoch Solicitors

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER:

1. That the Father spend time with the child, … born … October 1999, from Thursday 27 august 2009 until the following Monday 31 August 2009 and the child be permitted to travel to Melbourne to attend the Father’s wedding celebration.  Further:

(a)     changeover shall take place McDonald’s at M on Thursday 27 August 2009 at 2.00 pm with Aunt C or Uncle B to collect;

(b)     the child shall be permitted to travel to Melbourne with the Father departing Brisbane on 28 August 2009 at 8.55am.  The Father will supervise the child on the flight to Melbourne;

(c)     the child shall return to Brisbane (from Melbourne) on Monday
31 August 2009 arriving at approximately at 6.15pm.  The child is to be supervised on the return flight by his extended family members including his Aunt C, Uncle B, and grandfather.  The Mother shall collect the child from Brisbane domestic airport upon his arrival at her sole cost;

(d)     the Mother shall be permitted to telephone the child during the long weekend on the Father’s mobile once per day or the child’s mobile. 

1. That the Orders dated 5 July 2006 and Orders 11 to 27 (together with the notations) be discharged and replaced with the following Orders.

1. That the Mother have sole parental responsibility for the day to day care, welfare and development of the child when he is in her care.

1. That the Father have sole parental responsibility for the day to day care, welfare and development of the child when he is in his care.

1. That the parties have equal shared parental responsibility for the child in relation to his long term decisions.

1. That the child live with the Father as agreed to and at least on the following occasions:

(a)     during the school term, for up to one weekend each month commencing
6.00 pm Friday until the following Sunday at 5.00 pm.  The changeover on Friday shall occur at the H Shopping Centre in M with the Mother to be responsible for the transportation of the child to this location and with the Father to be responsible for the return of the child to KFC at P on Sunday.  The Father shall provide to the Mother twenty-eight (28) days written notice in advance of his intention to spend time with the child on any occasion during the school term;

(b)     for twelve (12) months from the date of this Order, during the first half of each school holidays.  The Father shall provide to the Mother written notice of the flight details twenty-eight (28) days prior to each holiday period with the Mother to ensure the child arrives at the Brisbane Domestic Airport one (1) hour before departure to enable the child to board his flight for travel and the Father will do the same in respect of the return journey;

(c)     if requested by the Father and if the child is not already with the Father, for three (3) hours on the child’s birthday and/or the Father’s birthday such visit to take place in the H area provided the Father gives to the Mother twenty-eight (28) days written notice of his intention to spend time with the child on either birthday;

(d)     the Father shall not book flights to Melbourne before 12 noon and not to return after 3.15 pm to Brisbane;

(e)     school holidays shall commence at 5.00 pm on the day school finishes and  shall conclude at 5.00 pm on the day prior to commencement of school whether or not that day is a pupil free day.

1. That otherwise the child live with the Mother.

1. That the Mother be permitted to spend time with the child if requested and if the child is not already with the Mother, for three (3) hours on the child’s birthday and/or the Mother’s birthday with such visit to take place where the Father has care of the child and provided the Mother gives to the Father twenty-eight (28) days written notice of her intention to spend time with the child on either birthday.

1. That the parties be permitted to enjoy uninterrupted telephone communication with the child when he is in the care of the other parent as follows:

(a)     once per week at an agreed time of 7.00 pm Wednesday Eastern Standard time;

(b)     once per week by web cam and with the Father every Sunday evening at 7.00 pm Eastern Standard Time and with the Mother to make this facility available for use and to ensure it is functioning;

(c)     reasonable email communication, with the Mother to facilitate the establishment of an email account.

10.1    That the parties appoint a paediatrician or paediatric gastroenterologist to manage the child’s treatment in relation to his anal atresia and to advise the parties on such ongoing treatment.  The parties to comply with the advice of the specialist.

10.2    The Mother to seek a referral from Dr R to an independent practitioner.

1. That the parties appoint one dentist to manage the child’s dental treatment and to advise the parents on such treatment.  The parents to comply with the advice of the dentist.

1. That the Orders in 3 to 11 are conditional upon:

(a)     the Mother undertaking to address the issue of her alcohol consumption with a view to her alcohol intake and liver function being monitored, attending drug and alcohol counselling and/or rehabilitation and/or an AA support group and developing a relapse prevention plan which will be provided to the Father and/or his solicitors on an ongoing basis;

(b)     upon the Father’s request of the Mother, she shall provide to the Father random urine and blood analysis results to demonstrate that his blood alcohol level has been maintained to between zero and .05% during a six (6) month period;

(c)     that, subject to paragraph (b) herein, the Mother submit to a urine and blood analysis to determine the presence of alcohol in excess of 0.05 and provide the results to the Father’s solicitors no later than forty-eight (48) hours after receipt by him, subject to the internal procedures of the pathology service;

(d)     that the said analysis occur on a random basis within twelve (12) hours of a request being made by the Father.  That the Father be at liberty to request the Mother to submit to the said random tests on up to three (3) occasions each month;

(e)     that notice shall be constituted by facsimile communication from the Father’s solicitors to the Mother’s solicitors;

(f)     that this Order be sufficient authorisation for the providers of the said analysis to release to the solicitors for the Father and the solicitors for the Mother all test results and the referral form from the Mother’s general practitioner;

(g)     that, in the event that alcohol in excess of 0.05% is detected in any sample given by the Father then either party have liberty to re-list the matter upon the giving of forty-eight (48) hours notice.

1. That the Mother undertake a liver function test within seven (7) days of these Orders and a further one fourteen (14) days prior to the first appointment with Dr V.  She shall authorise release of those results to the solicitors for the Father and to Dr V.

1. That the parties will not denigrate each other or each other’s family members and/or friends and/or partners in the presence of or within hearing of the child.  Further, each party will restrain their family members and/or friends and/or partners from denigrating the other in the presence of or within hearing of the child.

1. Neither party, their servants or agents shall discuss with or in the earshot of or show the child documents associated with these proceedings.

1. That the Mother be restrained from permanently relocating with the child from the H area without the written consent of the Father or an Order of this Honourable Court.

1. That the parties are to keep the other party informed of changes to the respective party’s residential address, telephone number and email address within twenty-four (24) hours of a change taking place.

1. Except in the case of an emergency that the Mother will provide the Father with twenty-four (24) hours prior notice of any intention to attend upon any medical specialist or general practitioner relating to the child and shall provide the name of the medical practitioner, his or her contact telephone number and the reason for the appointment, save where the child’s attendance with a medical practitioner is urgent and prior notice is not possible.  Where prior notice is not possible, the Mother shall provide to the Father as soon as practicable after the appointment a full report as to the child’s condition including the name of the treating medical practitioner and his or her contact telephone number and reason for the appointment.

1. The Mother shall authorise the child’s school to forward to the Father newsletters, notices, school reports and photographs at the Father’s cost.  Such communication be by mail or email at the school’s discretion.

1. That the parties provide to the other’s solicitors within seven (7) days the names of their treating general practitioner and/or treating therapists and their contact details since January 2007 to date.

1. That the parties attend upon an appropriately qualified practitioner for the purposes of non-reportable therapeutic assistance to address the dynamics within the family, such therapists to be agreed between the parties.

1. That the Mother do all such things to cause the child and J (if agreeable) to attend the therapy as when reasonably requested.

1. The costs to be shared equally.

1. That this Honourable Court appoint Dr V to prepare a psychiatric report of both parties, their partners, the child and J, such interviews not to occur until late January 2010.

1. That the Mother do all such things to cause the child and J (if agreeable) to attend Dr V as and when reasonably requested.

1. That Dr V be provided with copies of:

(a)     the subpoenaed documents;

(b)     Ms B’s report;

(c)     responses in writing to the factual matters in her report;

(d)     the parties’ affidavits;

(e)     copies of relevant tests from paragraphs 12 and 13.

1. That in relation to the psychiatric report to be prepared by the expert appointed pursuant to these Orders:

(a)     whether either party is suffering from a psychiatric illness, condition or disorder;

(b)     the current functioning, both emotional and psychological, of each of the parties;

(c)     the ability of each of the parties as a parent and the impact, if any, of (a) and (b) upon that capacity;

(d)     the attitude of each of the parties to the other;

(e)     the ability of each of the parties to promote contact of the child with the other parent;

(f)     any recommendations for treatment, if thought necessary by the expert;

(g)     any other relevant matter.

1. That the parties shall do all things reasonably required to facilitate the preparation of the report referred to above and will attend upon the expert at all reasonable times as and when requested by him/her and further shall authorise the release of the said report to the expert appointed pursuant to these Orders.  The costs of the report be initially borne by the Father with the trial Judge or such other Judge to apportion the costs between the parties at the trial.

IT IS ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4625 of 2009

MR CONSTANCE

Applicant

And

MS CONSTANCE

Respondent

REASONS FOR JUDGMENT

1. The parties have largely arrived at consent orders.  There are three discrete issues where there is not agreement and those areas have been helpfully highlighted in the draft that has been handed up.  It is all to the positive that all the big ticket items have been agreed to and I commend the parties for that.  The three areas in dispute may be summarised as arising under paragraph 1(c) of the draft produced.  Paragraph 6(a) of the draft produced and paragraphs 24 and 29.

2. Paragraph 1(a) is a one-off item, the others tend to be recurring items.  It happens that the father is to be remarried this coming weekend, as I understand it.  He says he has given ample notice to the wife.  There is a dispute about what notice she has.  In any event it is agreed that the child will travel down on 28 August.  The father is attending on Friday 28 August.  The child will travel down, there is no argument about that. 

3. The argument relates to whether the child should be returned at 6.15 pm, as contended for by the father, on Monday 31 August.  The mother says there is an earlier flight from Melbourne which will return at 3.15 pm.  She has to drive down from O to collect the child and she says she will be able to drive back in daylight hours and the child will be home at a sensible hour.  Under the father’s proposal she will not be able to return until about 8.30 pm or 9.00 pm and it will be very demanding on the child.

4. The father says the flights are booked for the return flight.  The child will return with his aunt and uncle and the fares will be forfeited, and they will have the expense of new fares and discounted fares may well not be available at this late stage.  What issue has not been canvassed even is whether there is availability on the flight arriving at 3.15 pm, with this airline or any other airline.  In any event it seems, to me, the only prejudice to the mother and the child is returning about 5 or 6 hours later to O.  Well, they are returning about 3 hours later than they would have otherwise returned.  To my mind it is a matter of convenience only to the mother.  It is a matter of serious expense to the father.  Other people, the aunt and uncle, have already got their fares booked, the child is booked. All in all I will allow the order to stand as drafted.

5. I tend to consider the proposals in relation to paragraph 6(a).  It is proposed that the father will come up one weekend a month to spend time with the child in the Brisbane area.  He will be staying in the M district with his brother and his wife.  The father says, as a matter of convenience, he would like the mother to drop the child off at 6.00 pm on Friday in the M region.  He is prepared to drop the child off at P, which is much closer to the O region and would save the mother traversing a lot of traffic.

6. The father only has one weekend a month.  I have had regard to the terms of Ms B’s report, that there seems to be positive relationship between father and child.  One can only assume that is to the good, that the child has a good relationship with both parents.  Of course, the Sunday afternoon drop off is not in dispute because that is to the mother’s favour.  She says that the father should have to come across to P to collect the child on a Friday afternoon.  It will be a lot easier for her. 

7. The father has to get from the eastern suburbs of Melbourne to Tullamarine airport on a Friday afternoon, which I expect, even using the toll roads and the freeways, would be the best part of an hour to an hour and a half.  He then has to get from Brisbane airport to M, which again, taking a broad estimate, would be 45 minutes to an hour.  The mother has to come down from O to the Brisbane area, which on Friday afternoon, even using the toll roads, could again well take a couple of hours, but to my mind it is eating in to the father’s precious time with the child to require him to travel from Brisbane airport across to P, and then having to negotiate back.  A journey which would take probably, of itself, more than two hours.

8. I think, on balance, it is a reasonable compromise for the mother to be able to drop the child at 6 o’clock at the H Shopping Centre at M, and for the father to be responsible for dropping the child at 5.00 pm on Sunday.  He then has to get himself back from P to Brisbane airport and hence to Tullamarine and back to the eastern suburbs of Melbourne.  So, again, I will leave the orders in 6(a) to stand.

9. I turn to paragraphs 24 and 29.  The parties are going to attend an appropriately qualified practitioner for the purposes of non-reportable therapeutic assistance to address the dynamics within the family, with such therapist to be agreed between the parties.  The parties, I am told, are rather hopeful that the therapy can be done by Mr G, a therapist practising in private practice in O.  Mr G was one time in charge of all the family consultants in Brisbane for the Family Court in Brisbane, at a time when there were a lot more counsellors in the system than there are now.  He enjoyed a very highly deserved reputation.  I would hope that he is able to assist the parties in this matter.  Of course, with the therapy being over a period of time, it is to be hoped that the child, J, who is of adult status, will be able to arrange to attend with the family to try and resolve these issues.  It will involve the father travelling, with further expense to him, to have to travel to O and hence return and will hopefully be done at a time to avoid overnight stays.

10. The father will have the cost of travel and the additional cost of getting himself to O.  Father says he has paid significant sums of money over the years for the support of his son.  The view that I take, accept the submission of Ms McMillan, that the mother would have a greater commitment to the therapy process if she has a financial interest in the outcome.  If there are no financial consequences it can go on for as long as it takes and the father is forking out the money all time.  The mother has a direct investment in an expeditious resolution of therapy if she is going to be saving money and it can be resolved without dragging on for an inappropriately long time. 

11. So far as the psychiatric report, the parties have agreed to a psychiatric assessment by an eminent Brisbane psychiatrist, Dr V.  It is not to take place prior to January 2010.  I assume that is to allow the parties to have an appropriate period of time in therapy with Mr G.  Again, sensible and I commend the parties for that.

12. To my mind, at first instance, the father should undertake to be responsible for the costs of Dr V.  The view that I take, in my experience, is, sadly enough, a party cries poor and the specialist medical practitioner won’t undertake the consultation and the report writing because one party is frustrating the process by simply pleading indigent circumstances, and hence the report does not get written or the appointment is cancelled.  I had a case of that only last week.  To my mind it is far easier for the report to be prepared, I won’t venture an estimate of the cost of the consultations and the reports, but it is a matter that can be raised in due course and I will add an order that the costs of the psychiatric assessment be borne in the first instance by the father with the trial Judge, or such other Judge, to be at liberty to determine the apportion  in which the costs of the preparation of the psychiatric report be shared.

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

Associate: 

Date:  24 August 2009