Darley and Darley (No. 4)

[2017] FamCA 850

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY (NO. 4) [2017] FamCA 850

FAMILY LAW – CHILDREN – When the children are to spend time with the father – Where the final hearing was part heard – Where interim orders were sought to be made to deal with the time between now and February 2018 – Where the court ordered the Father spend some specific weekend and holiday time with the children.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Darley

RESPONDENT: Ms Darley

INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

FILE NUMBER: BRC 2317 of 2013

DATE DELIVERED: 25 October 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 17, 18, 19 & 20 October 2017

REPRESENTATION

APPLICANT: In person

RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Pendergast of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

Orders

IT IS ORDERED THAT

1. Clause (1) on the Order made 13 October 2016 is amended by the insertion of the words “as amended on 25 October 2017” after the words “29 August 2016”.

2. Clause (2) of the Order made 29 August 2016 is discharged.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The children, X, born on … 2006, and Y, born on … 2009, spend time with the father at all times as may be agreed between the parents in writing and, failing agreement as follows:

   (a)from after school on Friday, 27 October 2017 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Sunday, 29 October 2017 (with changeover to occur at K Town Shopping Centre);  and

   (b)from after school on Friday, 10 November 2017 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Sunday, 12 November 2017 (with changeover to occur at K Town Shopping Centre);  and

   (c)from after school on Friday, 24 November 2017 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Sunday, 26 November 2017 (with changeover to occur at K Town Shopping Centre);  and

   (d)from after school on Friday, 8 December 2017 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Tuesday, 12 December 2017 (with changeover to occur at K Town Shopping Centre);  and

   (e)from 3.00 pm on Friday, 22 December 2017 (with changeover to occur at McDonald’s R Town, R Town City Shopping Centre, R Town Road, R Town) until 3.00 pm on Monday, 25 December 2017 (with changeover to occur at K Town Shopping Centre);  and

   (f)from 3.00 pm on Tuesday, 2 January 2018 (with changeover to occur at McDonald’s R Town, R Town City Shopping Centre, R Town Road, R Town) until 3.00 pm on Tuesday, 9 January 2018 (with changeover to occur at K Town Shopping Centre);  and

   (g)from after school on Thursday, 25 January 2018 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Sunday, 28 January 2018 (with changeover to occur at K Town Shopping Centre);  and

   (h)from after school on Friday, 9 February 2018 (with the father to collect the children from R School at the commencement of time) until 3.00 pm on Sunday, 11 February 2018 (with changeover to occur at K Town Shopping Centre).

AND IT IS FURTHER ORDERED THAT

1. The parties have liberty to apply on the giving of 48 hours’ notice in writing by directing correspondence to … to the attention of the Case Manager.

2. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym : Darley & Darley (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2317 of 2013

Mr Darley

Applicant

And

Ms Darley

Respondent

And

The Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The parents of X, born in 2006, and Y, born in 2009 remain engaged in proceedings in which both seek parenting and property settlement orders (if I might describe the proceedings by that short form).  Those proceedings started before me on Tuesday, 17 October 2017.  They had not concluded by the afternoon of Friday, 20 October 2017 and are now listed to continue before me in February 2018. 

2. At the time the proceedings were adjourned on Friday, the father had given evidence and been cross-examined by the mother and by Counsel who appeared for the Independent Children’s Lawyer.  The mother had given evidence and was being, and had been, cross‑examined by Counsel for the Independent Children’s Lawyer.  In addition, the author of a Family Report filed on 25 November 2013 (and an addendum filed in early 2014) had been the subject of cross-examination by Ms Darley.

3. Given that the proceedings were not finalised – and that it looked as though they would be not be finalised by the conclusion of the Court date last Friday – I raised with the parties the prospect of making interim parenting orders to deal with the time between now and February 2018.  I did so conscious of the upcoming school holidays at the end of the year and that it seemed agreed, on the evidence, that the children have not, as yet, spent any holiday time with their father. 

4. I also did so in the context of Ms Darley’s evidence to the effect that, for the period after the making of orders by consent on 12 December 2014 until May 2016, if, during that period, Mr Darley had complied with the requirement imposed upon him by those operative orders to give her eight weeks’ notice of any holiday period, to provide the appropriate letter from his employer and not to seek to run together any holiday time with weekend time the children were to spend with him pursuant to that order, she would have had no problem with the children spending holiday time with him.

5. The holiday time that was ordered to occur following the making of the Order on 12 December 2014 and to May 2016 was to be that provided for by that Order made, by consent, on 12 December 2014.  The terms of that Order, which was the subject of unsuccessful appeal by Ms Darley, may be summarised as follows: 

   a)that, commencing on Friday, 9 January 2015 the children (who were then eight and five years of age) would spend alternate weekend time with their father, from Friday at 3.00 pm (or after school) until Sunday at 3.00 pm;  and

   b)that, during the 2015/2016 summer holidays, they would spend seven nights with him and two weekends;  and

   c)that, during all other holidays in 2015, they would spend four consecutive nights;  and,

   d)in 2016:  seven consecutive nights, with changeover during holidays to occur at (or at the front of, perhaps) Coles at K Town Shopping Centre.

6. Whilst, as I have said, the consent order was the subject of an appeal by Ms Darley, that appeal was unsuccessful.  Her evidence before me was to the effect that, between 12 December 2014 and May 2016, the children spent weekend time with their father in accordance with the terms of the December 2014 Order: that is, they spent alternate weekends from Friday after school until Sunday 3.00 pm in his care. 

7. It is clear on the evidence that the children did not spend any time with their father between 12 May 2016 and 29 August 2016 – as a result of decisions taken by Ms Darley.

8. After the matter returned to Court before Judge Howard on 29 August 2016, his Honour ordered that the children spend time with their father on a weekly basis: that is, each Saturday from 9.30 am to 5.00 pm.  They are the existing parenting orders insofar as orders provided for specific time the children are to spend with their father. 

9. The manner in which a Court is to approach the making of interim parenting orders and the taking of decisions on an interim basis is as prescribed in the well‑known authority of Goode & Goode[1], particularly at page 80,903.  Such process is to be undertaken with the benefit of the guidance expressed by the Full Court in Banks & Banks[2] wherein their Honours emphasised the importance of focusing upon the most significant s 60CC considerations in the context of resolving the competing parenting proposals proffered by each party for interim parenting orders.

   [1] (2006) FLC 93-286.

   [2] (2015) FLC 93-637.

10. In the present case, Ms Darley’s proposal for interim parenting orders was that: 

    a)the children should spend time with their father from Friday after school until Saturday at 5.00 pm each alternate weekend;  and

    b)that they should spend time with her on … because that is her birthday;  and

    c)that they should spend Christmas Day with her so that they can go to church with her on that day, as has previously been the situation;   and

    d)that they spend time with their father on Boxing Day;  and

    e)that they spend time with her on the Mother’s Day weekend, and some time with their father on the Father’s Day weekend, although that was more problematic given X’s birthday sometimes falls on that weekend;  and

    f)that they spend four nights in holiday time, commencing on 8 December 2017:  being the last day of school for the term of this year for four nights until, therefore, Tuesday morning the following week;  and,

    g)that they spend another block of four nights with their father, between 2 January 2018 and 6 January 2018.

11. Insofar as the proposals advanced by Ms Darley deal with the Mother’s Day weekend and the Father’s Day weekend and the time that is to occur at Easter next year, I do not intend today to make orders in relation to those specific periods of time because the matter will return before me next year for finalisation prior to the relevant times.

12. Counsel for the Independent Children’s Lawyer submitted that the orders which are in the children’s best interests would see them spend alternate weekends from after school Friday to 4.00 pm Sunday with their father;  that the father collect them from school at the commencement of that time so as to minimise the necessity for parental interactions and that the mother collect the children from the same place of changeover where changeovers have occurred thus far, because of its familiarity and the fact that security is in place.  That place is the K Town Shopping Centre.

13. Counsel for the Independent Children’s Lawyer submitted that the children’s time with their father should end at 4.00 pm on the Sunday because that would permit them to travel back from K Town to the R Town environs, or thereabouts, where it seems likely they live with their mother. 

14. Counsel also submitted that the children be afforded the opportunity to spend this Christmas Day with their father, given that they have not yet had that opportunity. 

15. Counsel submitted that arrangements could be put into place so that the children are given the opportunity to spend time with each of their parents over the Christmas Eve, Christmas Day and Boxing Day period of time. 

16. Counsel further submitted that, given the father’s evidence that he is available for holiday time after 1 January 2018 but is unable to make himself available due to work commitments in the period from after Boxing Day until New Year’s Day, the children should spend time with their father from 4.00 pm on 2 January 2018 until 4.00 pm on 18 January 2018.  That proposal, it was submitted, would give the children the opportunity to spend two clear weeks with their father, during which he would make himself available for that purpose. 

17. Counsel submitted that the proposal put forward by the Independent Children’s Lawyer accommodated Ms Darley’s request for the children to be in her care on … 2012 (her birthday) and also dealt with time from the end of school (being 8 December 2017) and afforded to her sufficient time – if she chose – to travel with the children to spend time with family interstate at the end of 2017.

18. Counsel also submitted, on behalf of the Independent Children’s Lawyer, that the children should spend time with their father from 4.00 pm on 25 January 2018 (namely, the day before Australia Day, which next year falls on a Friday) until 4.00 pm on 28 January 2018.  That is, that the children should be afforded the opportunity to spend time over the Australia Day weekend in the care of their father.

19. Counsel further submitted that orders should be made for the children to spend time with their father from after school on 9 February 2018 until 4.00 pm on 11 February 2018, that being the last weekend before the matter returns before me. 

20. The orders proposed by the Independent Children’s Lawyer were, on the submission of Counsel who appeared for him, devised to enable the children to spend holiday time with each of their parents and, in essence, as I heard the submission, to enable the children sufficient time to settle prior to the recommencement of school. 

21. Mr Darley joined in and supported the proposals advanced by Counsel for the Independent Children’s Lawyer. 

22. In responding to those submissions, Ms Darley emphasised that 4.00 pm is too late a time for changeover to occur on Sunday afternoon in the event that orders were made contrary to her primary position, that being what I have already outlined.  She submitted that, if orders were made contrary to her primary position and which provided for changeover to occur on Sunday, 3.00 pm was the appropriate time for the children to transition into her care so as to afford them the opportunity to return from K Town to their home and to settle that evening before school the next day. 

23. She also submitted that, a two week block of time was too much at this time for the children, given the past history of their interaction with their father.  She submitted that, given that school recommences next year following the weekend commencing with Friday, 18 January 2018, the children should be in her care so that they can prepare; she needed more time or they needed more time with her than simply the weekend before.

24. She emphasised her submission that the children spend Christmas Day with her and either spend time with their father on Boxing Day or from 4.00 pm on Christmas Day.  Again, she emphasised the importance to the children of the opportunity to continue the tradition they have established in attending church on Christmas Day.  Her submission was to the effect that the father could pick the children up at 4.00 pm on Christmas Day and return the children to her at 4.00 pm on Boxing Day. 

25. She submitted that there should be only one overnight time each alternate weekend given the time the children have previously spent with the father.  She also submitted that, whilst the father should collect the children from school on the Friday of their time with him, the changeover at the conclusion of their time with him should occur at the S Town Shopping Centre to accommodate the travel impost. 

26. It was clear from Mr Darley’s submissions (made after Ms Darley’s submissions outlining her proposed change to the place of changeover) that he preferred – to use his term – changeover to stay as it is.  That is, he preferred changeover to occur at the K Town Shopping Centre as it previously has.

27. The consideration of the appropriate parenting orders, being those which are in the children’s best interests having regard to the relevant s 60CC considerations, occurs within the context of the previous consent orders made on 12 December 2014; that no weekend time was missed between the making of those orders and mid-May 2016; that there was a period of time during which the children did not spend any time at all with their father (as I have already outlined) and that, from soon after the making of orders on 29 August 2016, they have spent weekly time with him from 9.30 am to 5.00 pm each Saturday.

28. It takes into account, also, the mother’s evidence (as I have said) during the course of her cross-examination before me that the only reason the children did not spend block holiday time with their father pursuant to the December 2014 Order was because of failures she asserts occurred in the implementation of the requirement to give notice, to provide confirmation from an employer and in the attempt to run together the weekend and holiday time. 

29. In addition, it is relevant, I think, to note that, since there has been in place an order over the last two years or so prohibiting each parent from using corporal punishment, the mother’s evidence was to the effect that there was nothing to suggest that there has been any breach of such term by the father.  My note of her evidence was to the effect that that order had been effective in that respect.

30. I take into account, in relation to the allegations involving the father’s failure to properly deal with and manage the children’s exposure to sun, that the incident referred to by the mother in her evidence this year was one arising out of the children’s attendance at a pool in about February of this year.  That also related, perhaps more importantly, to the manner in which the father dealt with the children’s asthma.  I have before me the evidence to the effect that, whilst he did not have available to him in the pool environs the asthma medication, it seems to have been accepted that it was available to him in the car.

31. I take into account the mother’s evidence that she appreciates that the father spends time with the children – taking them biking and swimming, etcetera.  I take into account her evidence that she just wants the father to stop the children returning to her with sunburn and to ensure that they are provided with their medication. 

32. Her evidence was very much to the effect that she did not want the father out of the children’s lives and that they deserve time with him because he is part of who they are and part of their identity.

33. It seemed to me, therefore, as I have referred to already, the things that had previously prevented the children spending time with their father during holiday times very much relate to his non-compliance with giving notice, etcetera, rather than any other particular issue – although, of course, I record the mother’s rationale for ceasing the children’s time with their father was because of her concerns as to the manner in which he dealt with their exposure to sun and with the necessity to administer to them medication at various times.

34. The reality for the children (as a consequence of the orders made in December 2014) is that they have already experienced a significant number of occasions during which they have spent time with their father from Friday 3.00 pm (or after school) until Sunday 3.00 pm each alternate weekend.  As a consequence of the Order made on 29 August 2016, commencing from 3.00 pm September 2016, they have spent time with him each Saturday from 9.30 am to 5.00 pm and have attended changeovers at the K Town Shopping Centre.

35. The Order made by Judge Howard on 13 October 2016, by which the matter was transferred to this Court, provided that the interim order he made on 29 August 2016 remain in force. 

36. I intend to make orders relating to the Order of 29 August 2016 and the Order of 13 October 2016 only to accommodate the orders I intend to make for the children’s time with their father between now and the time the matter returns for hearing before me in February 2018. 

1. The only evidence by way of Family Report that is before me is contained within reports prepared by Ms T filed on 27 November 2013 and an addendum filed 6 May 2014. 

2. The reason this evidence is the most recent independent observation and assessment of the children’s interaction with, and relationship to, their father arises because, despite previous orders about her attendance on a Family Report writer for the preparation of an updated report, the mother has failed to attend on the same and has failed to take the children to such person.

3. The previous interviews with Ms T occurred on 15 October 2013.  Her addendum was prepared following the provision to her of documents by the then Independent Children’s Lawyer.  It seems, from reference to Ms T’s addendum, that despite her desire to undertake additional interviews on 13 May 2013 (so as to provide a further basis for the preparation of an updated report) such interviews did not occur because Ms Darley expressed a wish to video and record them and the date was not suitable to her.  As a consequence, it seems, the date for the subsequent interview of the children was vacated. 

4. The orders in relation to the issue of obtaining an updated Family Report to assist the Court have a long history. 

5. On 13 October 2016, Clause (3) of the Order made by Judge Howard was to the effect that the parties and children of the relationship would attend for Family Report interviews on a date and at a time to be advised by the Independent Children’s Lawyer. 

6. I interpose to record that, on 9 May 2017, I listed this matter for trial before me commencing on 17 October 2017 for four days.

7. An Order made by Registrar Coates on 6 July 2017 contains, by way of Notation (namely, Notation E), that the Independent Children’s Lawyer has arranged for Mr H to prepare a Family Report, with interviews scheduled to occur on 11 September 2017. 

8. After Ms Darley failed to attend on that occasion and failed to take the children for the appointment, I made an Order on 22 September 2017 that she attend an appointment with Mr H at 2.00 pm (or such other time advised) on 2 October 2017 and that she arrange for the children to attend on him on that day:  namely, 2 October 2017.

9. Despite that Order, it appears, on the evidence before me, that Ms Darley advised Mr H – not long before 2.00 pm on 2 October 2017 and certainly on that same day – that she did not propose to attend at the interview and did not propose to make the children available for it. 

10. Therefore, it is within that context then, as I noted at the commencement of the trial before me last week, that I will simply have to do the best that I can, on the evidence before me, to arrive at my interim decisions about those parenting orders which, on an interim basis, are in the children’s best interests, having regard to the applicable s 60CC considerations.

11. I take from Ms T’s reports the following. 

12. She interviewed the children on 15 October 2013, at which time X was seven and Y was four years of age respectively.  She noted in her report that, at the commencement of their interaction with their father, the children were standoffish. According to her evidence, unchallenged during cross‑examination by Ms Darley, it was not long before the children were completely relaxed, were smiling and laughing and engaging nicely with their father. 

13. When Ms T spoke with X, X told her that she liked seeing her father, would like to see him every second or third weekend, and would like to spend time with him during holidays.  She agreed with the proposition that he was a lovely dad. 

14. Ms T assessed that the complaints voiced by X to her about her father appeared to Ms T to be rehearsed or coached in at least some particulars.  I refer to, but do not intend to incorporate further into these Reasons, the paragraphs of Ms T’s first report wherein she sets out her observations, interactions, conclusions and opinion following the same of her interactions with X.

15. When Y spoke with Ms T, she told her that she liked playing with her father; that it was nice to see him at the interview; and that she would like to see him more:  “lots more”. 

16. For the reasons outlined in her first report, Ms T’s relevant recommendation was that the children spend time with their father each weekend for five to six hours unsupervised, with changeovers to occur at a Contact Centre.

17. The addendum report prepared by Ms T was, as I have already outlined, one prepared only following the provision of additional information by the then Independent Children’s Lawyer.  It did not involve her having a further opportunity to observe the children, to interview them, or to notice and observe their interactions with each of their parents.

18. What I take from Ms T’s addendum report is her emphasis upon the need to protect the children from the entrenched conflict between their parents. 

19. Nothing in the interaction before me during the course of the trial thus far has suggested, in any way, that there has been any abatement or amelioration of the extent and degree of the conflict between the parents. 

20. There is nothing, therefore, to cast any particular doubt upon Ms T’s assessment – as long ago as 2013 – of the entrenched nature of the conflict between these parties.

21. I also take from Ms T’s addendum report her recommendation that a third person be present at changeovers:  in effect, that there be either an independent person or, in my view – consistent, perhaps, with orders made subsequent to the release of Ms T’s addendum – that changeovers take place in a public place so as to ensure that, to the extent possible, the children are protected from conflict between their parents on such occasions. 

22. Those two matters, of course, seem to me to provide a sufficient basis for a conclusion that it is very important for the children that there is where possible, a minimisation of the opportunities for parental interaction during their presence.  In that way, any proposal which sees a decrease in the number of changeovers to be effected by the parents is, in my view, something which is highly likely to be beneficial to these children at this time. 

23. It is against that background, and taking into account those factors which I have outlined in the Reasons delivered orally thus far, that I proceed to consider the various proposals proffered by each parent and the Independent Children’s Lawyer for the making of interim parenting orders. 

24. I am not persuaded that it is in the children’s best interests at present to make orders for the block holiday time in the manner proposed by the Independent Children’s Lawyer.  I consider that highly likely to be something which may cause the children to be exposed to additional conflict or heightened anxiety on the part of their mother. 

25. Similarly though, I do not accept Ms Darley’s proposition that it is in the children’s best interests at present for them to spend two blocks of four nights during the end of year school holiday period.  In arriving at that conclusion, on an interim basis, I have taken into account the historical time that the children have spent with their father and the matters arising from their interview with Ms T, albeit that such interview occurred towards the end of 2013.

26. I have factored in, and taken into account, Ms Darley’s proposal for the children to spend a four night block with their father from the conclusion of school until Tuesday morning and for time in a block from 2 January until 6 January next year.  I consider that a block from 8 December 2017 until 3.00 pm on the Tuesday, a four night block, is something which is in the children’s best interests.  That will be the longest period of time they will have spent with their father for a significant period of time, namely since their parents separated in September 2012.

27. I have considered the competing submissions in relation to the duration of alternate weekend time.  I consider, given the history of time, that which was agreed by the parents in the December 2014 Orders and, more importantly, implemented by them for a significant period of time, that it is in the children’s best interests that they return to having the opportunity of spending time with their father each alternate weekend from Friday after school until 3.00 pm on the Sunday. 

28. I take into account, and accept, Ms Darley’s submissions in relation to the concluding time (namely, 3.00 pm) because I consider that such time will permit her to return the children to their home and afford to them the opportunity to settle and get ready for school the next day. 

29. I have taken into account, and accept, Ms Darley’s submissions in relation to affording the children the opportunity to spend time with her in 2016 (being the day of her birthday).  It is important, in my view, that the children continue to have that opportunity, at least on an interim basis, pending the making of final orders at some time next year.

30. I have also taken into account, and accept the thrust at least of Ms Darley’s submissions that it is important to allow time to the children to settle prior to the commencement of the school year next year:  hence, there will be a period between 9 January and 25 January during which the children will be in their mother’s care.  I appreciate that school commences on 22 January.

31. The purpose underlying the orders which I will make is, as I have said, to ensure the children have sufficient opportunity to settle with their mother and in her care prior to commencing school next year, that she has appropriate opportunity to make any last minute arrangements to facilitate that attendance and that they spend the first week of their school year in 2018 with her. 

32. The orders, though, will afford to the children the opportunity to spend time with their father from the end of that week over the Australia Day weekend.  In that way, they will be able to have the opportunity to share with him all of the excitement that is highly likely to attend upon the commencement of any new school year. 

33. I have taken into account and accept the, in essence, joint submissions of all the parties as to the appropriateness of making orders which will see the father collect the children from school at the commencement of their time with him on weekends.  Not only will that eliminate one interaction between the parents, it will also enable the father the opportunity to be involved in the children’s school.  It will afford to him the opportunity to communicate with their teachers and principal and it will also provide the opportunity to note whether he is, in fact, interested in doing those types of activities.

34. Associated with the obligation to collect the children at the commencement of their time at the end of school on Fridays is the associated impost on the father and children of travelling at that time (namely, Friday afternoon) and returning from R Town to K Town. 

35. I have taken that into account in my determination that changeovers at the conclusion of the children’s weekend time with their father will occur where they have been occurring so far:  namely, at the K Town Shopping Centre. 

36. In that way, the travel associated with facilitating the children’s time with their father will be shared by each parent in a way that is demonstrably tangible to the children.  Each parent will be required to travel from the Brisbane environs to K Town and back again to facilitate the children’s transition between them and the mother will be afforded the time from 3.00 pm on the Sunday to enable that the children have sufficient time to settle before school the next day.

37. I have taken into account and considered Ms Darley’s submissions about the importance to the children of continuing their tradition of attending church with her on Christmas Day.  I have also, though, taken into account what I consider to be the importance to the children of affording them the opportunity to spend time with their father on Christmas Day – something which has not been an experience for them since the separation of their parents in September 2012.

38. I accord the latter greater priority on this occasion. 

39. Accordingly, I intend to make orders that will see the children in their father’s care on Christmas Eve and Christmas morning but which will also see them return to their mother’s care on the afternoon of Christmas Day.  In that way, the children will have the opportunity to spend time with each of their parents over the Christmas Day/Boxing Day period. 

40. It is for those reasons then, taking into account in particular the history of the time the children have previously spent with the father, the mother’s evidence in relation to the reasons why block holiday time has not occurred and, in my view, the importance of affording them the opportunity to experience time in the care of each of their parents both during weekend time and during school holiday time that I make, on an interim basis, the following orders. 

41. The orders in their form will record that Clause (1) of the Order made 13 October 2016 is amended by the insertion of the words “as amended on 25 October 2017” after the words “29 August 2016”. 

42. The orders I make today will also discharge Clause (2) of the Order made 29 August 2016, that being the order which provides for the children to spend weekly Saturday time with their father. 

43. The intention which underpins the orders amending and discharging previous Orders in the manner I have just outlined is so that the parties are clear that the terms of the order I express in a moment provide for the time the children are to spend with their father between now and the recommencement of the trial in mid-February 2018. 

44. Save for that change, the other orders remain operative and in force.  The amendment to the Order made 13 October 2016 is simply to facilitate that. Save for the changes to the actual time that the children will spend with their father, the other existing orders remain operative and binding upon the parents at this stage. 

45. For these reasons then, delivered orally this morning, I make orders in the following terms by of interim parenting order:  I do not intend to read them in their exact form into the record, but what I intend to do is to read the dates during which the children will spend time with their father because it is my intention the parties receive today by email a copy of the order and that, as soon as the Reasons I am in the process of delivering orally are settled, they be provided with a settled copy of those written Reasons. 

46. The orders, therefore, are in these terms, by way of summary.  The intention is that, wherever the children are at school, the father will collect them from school.

47. Whilst I did not receive submissions in relation to the place of collection of the children during holiday time, it seems to me appropriate that such changeover occur in a public place. 

48. Whilst the parties are at liberty, of course, to agree to a venue other than McDonald’s, it seems to me that, given its location in the vicinity of the R School (namely, up R Town Road), it is at least somewhere that is close to the place from which the children will be collected when they are at school during school term. 

49. It is for that reason that I have nominated and included the McDonald’s R Town as the place of changeover at the commencement of the time the children spend with their father during school holiday periods.

50. I also intend to make an order that the parties have liberty to apply on the giving of 48 hours’ notice in writing by directing correspondence to the Brisbane case coordinator to the attention of the case manager.  Of course, such order encompasses the Independent Children’s Lawyer.  It is my intention that any difficulty which arises with the implementation of the terms of the order made today between now and the recommencement of the trial in mid-February 2018 be brought to my attention as soon as possible so that it can be attended to.

51. It is for those reasons then that I make orders in terms of the Minute signed by me and placed with the papers.  I direct that a copy of the order made today be provided by email to the parties forthwith.  I also direct that a copy of the Reasons delivered orally, once settled, be provided to the parties forthwith. 

52. I record that it is my intention that those Reasons be provided to the parties before the commencement of the weekend time on Friday so that, if there is any issue arising, the parties will have access to a written form of the Reasons I have delivered orally, which underpin the orders I have made.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 25 October 2017.

Associate:     

Date:              25 October 2017