Creswick and Lewis

[2007] FamCA 360

FAMILY COURT OF AUSTRALIA

CRESWICK & LEWIS [2007] FamCA 360

FAMILY LAW - CHILDREN - Orders - Variation

Family Law Act 1975 (Cth)

APPLICANT: MR CRESWICK

RESPONDENT: MS LEWIS

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3358 of 2005

DATE DELIVERED: 4 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 4 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SMITH

SOLICITOR FOR THE APPLICANT: LUCAS & MARSHMAN

COUNSEL FOR THE RESPONDENT: MR HALL

SOLICITOR FOR THE RESPONDENT: ROMEO & ASSOCIATES

INDEPENDENT CHILDREN’S LAWYER COUNSEL: MR HEBBLEWHITE

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: BOWLEN DUNSTAN & ASSOCIATES

Orders

1. THAT the father return the children to the mother, at the pre-arranged venue changeover in B at 11.30 a.m. (punctually) on Saturday 7 April 2007.

2. THAT the mother thereafter return the children to the father at that same venue at 11.30 a.m. (punctually) on Saturday 21 April 2007.

3. THAT thereafter the parties, until final judgment and orders are pronounced have a fortnightly period on a rotation basis with the children, next commencing with the mother on Saturday 5 May 2007 and thereafter with the father on Saturday 19 May 2007 and in like manner thereafter.

4. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3358 of 2005

Mr Creswick

Applicant

And

Ms Lewis

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. During hearing and, indeed, near to conclusion of the matter of the parties an issue has arisen as to the periods of time to be spent with the two boys over Easter and then ongoing pending delivery of judgment.  The order is dated 9 January 2007, pursuant to which time the two boys lived with the father until 17 March on a rotation basis.   

2. The children were living with the mother during the commencement of the trial, but there was an arrangement for them to be delivered up to the father last Thursday, 29 March, rather than Saturday, 31 March.  The children have been with the father and are currently with the father, although the children themselves are in W with the father in Melbourne for this hearing or otherwise staying in B. 

3. Given the volume of evidence in this case and the necessity to make a decision with proper reasons, I asked counsel for all parties, including the Independent Children's Lawyer, to endeavour to resolve where the children will be, and on what rotation basis in accordance with a continuation of the earlier order pending reasons for judgment.  I emphasise that because of listing issues and my unavailability to sit for at least three of the next four weeks the matter would likely be early to mid-May before judgment and reasons were fully delivered.

4. As to be expected in this case, the parties would have no likelihood of any rational out of court discussion or agreement.  The father's proposal is to extend his period with the children now to 14 April, that is, beyond the fortnight.  The mother's proposal is to reduce the period to Easter Saturday, that is 7 April, so that the period is of nine days and not fourteen.  Therefore a decision needs to be made. 

5. I understand that all parties want to return the changeover to a Saturday, pending the outcome of final reasons and orders.

6. The independent children's lawyer was prepared to agree to an extension to 14 April for no particular reason, but on balance and because a decision had to be made.  Counsel for both parties submitted the dates that best suited their clients. 

7. I am required to make a decision and on the balance of splitting Easter, the benefit of that holiday time to the parties and to the children, it does seem to me that this Saturday is more appropriate than Saturday week.  It is better, and in the interests of the children, to have more regular time with their parents than an extended period without one of the parents.

8. I will order that changeover occur at the usual B venue, hopefully without incident and turmoil, at 11.30 this Saturday.  It goes without saying that both parties are responsible for travelling their share of distance to be at that location on 11.30 Saturday.  The changeover thereafter will occur on 11.30 Saturday, 21 April, when the children are returned to the father and thereafter the changeovers, if required, will occur, to the mother on Saturday, 5 May, and then to the father on Saturday, 19 May. 

9. For those brief extempore reasons and because it is in the children's best interest in my determination the orders are as now pronounced:

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 24 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CRESWICK & LEWIS