Dalton and Dalton

[2007] FamCA 1466

FAMILY COURT OF AUSTRALIA

DALTON & DALTON [2007] FamCA 1466

FAMILY LAW – CHILDREN – Changeovers – Removal from Magellan list

Family Law Act  1975 (Cth)

HUSBAND: Mr Dalton

WIFE : Ms Dalton

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4340 of 2007

DATE DELIVERED: 16 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 16 November 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr A.J. Crozier-Durham

SOLICITOR FOR THE HUSBAND: Calleas Le Brun & Burke

COUNSEL FOR THE WIFE: Mr. D.E. Whitchurch

SOLICITOR FOR THE WIFE: Whyte Just & Moore

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms. Buchanan

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Marshalls & Dent

Orders

1. That all previous parenting orders in respect of the children B born … July 2003,  S born … December 2005 and N born … December 2005 be discharged, save as expressly provided in these orders.

2. That the parties share in the joint responsibility for the long term care, welfare and development of the children.

3. That the children live with the mother each week from 5:00 pm Saturday to 5:00 pm Wednesday commencing 17 November 2007.

4. That the children live with the father as follows:

   (a)each Wednesday from 5:00 pm to Saturday at 5:00 pm commencing 21 November 2007;

   (b)from 3:00 pm Christmas Day 2007 to 5:00 pm Boxing Day 2007;  and

   (b)at such other times are agreed between the parties.

5. That paragraphs (8) and (9) of the orders made on 14 August 2007 continue in full force and effect.

6. That each of the husband and the wife abide by any reasonable direction of his or her medical practitioner, psychiatrist or treating professional including the taking of any medication prescribed by such practitioner.

IT IS FURTHER ORDERED

1. That changeovers take place at the parties’ respective homes as follows : 

   (a)the mother or her nominee shall collect the children from the father’s home at the commencement of a period of time with her;  and

   (b) the father or his nominee shall collect the children from the mother’s home at the commencement of a period of time with him.

IT IS FURTHER ORDERED BY CONSENT

1. That each party be given first right of refusal in circumstances where the other party is unable to care for the children for any period in excess of eight hours. 

2. That each of the husband and the wife be in substantial attendance when the said children are in his or her respective care. 

3. That until further order the husband and the wife be restrained from discussing the financial proceedings herein within in the presence or hearing of the children.

IT IS FURTHER ORDERED

1. That the application for final parenting orders be removed from the Magellan list and referred to the Trial Notice Pool, together with the applications for final property orders, to be given priority as of 9 July 2007. 

2. That either party have liberty to apply on short notice to the other party.

3. That pursuant to s.62B and s.65DA(2), of the Family Law Act1975 (Cth), 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.

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

5. That pursuant to Rule 19.50 of the Family Law Rules2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4340 of 2007

MR DALTON  

Husband

And

MS DALTON  

Wife

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties have three children, a daughter (B) aged four and twins (S and N) who will be two in December.  Litigation between their parents began in the Federal Magistrates Court.  Final parenting orders were made there, by consent, earlier this year.  Subsequently, an application was made by the father to discharge those orders.  He sought that the children live with him and that their time with their mother be reserved, pending the release of a psychiatric assessment.  Walters FM transferred the case to this court on 9 July.  Significant allegations had been made by each of the parties against the other.  Amongst these, was an allegation that B (now four) was at risk of sexual abuse from a neighbour's child.  Once in this court, a form 4 having been filed, the case was assessed as suitable for the Magellan list.

2. I have read the Department of Human Services’ report.  To the parties' credit, and to the credit of their lawyers, they have today negotiated interim orders, pursuant to which B, N and S will move between their parents' homes, in a shared parenting arrangement. They have been unable to agree on changeover arrangements. 

3. If the parties are to succeed in co-operative parenting, it is important to signal that co-operation to the children.  The children need to feel that their parents respect each other and that both are involved in their day-to-day lives.  To achieve that, the children must be able to move easily between the parents' homes.

4. The parties live close together. Under the earlier orders changeovers occurred at their respective homes. The mother now seeks an order for changeovers to be at a McDonald’s restaurant, close to their homes. 

5. The wife has recently alleged that the husband has been abusive and has berated her in the course of changeovers.  Parental discord at that point is likely to be very unsettling for children; even in the best of circumstances changeovers can be unsettling for children, who often take a little time to settle down after moving from home to home. Whilst a neutral place offers some advantages, I am not satisfied in this case that moving the children four blocks to McDonalds for the sole purpose of changeovers is likely to be in their best interests.  The twins are very young and B is only four.  There is little point in complicating the logistics when they can be moved straight from the home of one parent to the other parent.

6. While I will not make an order to this effect, the parties might like to consider using a third party for changeovers, whether a grandparent or someone else.  That could provide a buffer to move forward after some discord.  The parties have agreed to injunctions being made today.  If they can abide by those injunctions and these orders, the cause of the tension may disappear. 

7. I do propose to remove the case from the Magellan list.  The allegation of sexual abuse brought it into the list.  They are no longer pressed.  The parties do seek final parenting and property orders but the resources behind this list are reserved for cases involving significant allegations of physical or sexual abuse of children.  Fortunately such allegations no longer form any part of this case, which should return to the standard litigation track. 

I certify that the preceding 7 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

Date: 16 November 2007