DARLEY & DARLEY

[2018] FamCA 202

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY [2018] FamCA 202

FAMILY LAW – CHILDREN – Interim parenting orders – where earlier interim parenting orders provided for the children to spend alternate weekends and half school holidays with the father – where judgment is reserved in the matter – where the Independent Children’s Lawyer and father submit that further interim parenting Orders, consistent with the earlier orders, are appropriate and in the children’s best interests – where the mother submits the children should spend time with the father on one day per month during the day and that no time occur during school holidays – where it is ordered that the children spend time with the father each alternate weekend and for a week during school holiday time provided that he provides written confirmation that he has leave from work during the school holiday period.

FAMILY LAW – CHILDREN – Parental responsibility – where the mother’s oral application for sole parental responsibility is dismissed.

Family Law Act 1975 (Cth)

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

APPLICANT: Ms Darley

RESPONDENT: Mr Darley

INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston Lawyers

FILE NUMBER: BRC 2317 of 2013

DATE DELIVERED: 3 April 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 3 April 2018

REPRESENTATION

APPLICANT:	In person by telephone
RESPONDENT:	In person by telephone

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kingston, Norman & Kingston Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The children, X, born on … 2006, and Y, born on … 2009, (“the children”) spend time with the father from 3.00 pm on Friday, 6 April 2018 (with the father to collect the children from the McDonald’s Restaurant, Suburb R City Shopping Centre, Suburb R Street, Suburb R at the commencement of time) until 3.00 pm on Friday, 13 April 2018 (with changeover to occur at K Town Shopping Centre) provided that by 5.00 pm on Tuesday, 3 April 2018, the father provide the Independent Children’s Lawyer and the mother with written confirmation from his employer assuring that he has leave from work from Friday, 6 April 2018 until Friday, 13 April 2018.

2. In the event that the father provides the Independent Children’s Lawyer and the mother with written confirmation referred to in Clause 1 of this Order, the father shall file and serve, by 4.00 pm on Tuesday, 10 April 2018, an affidavit from his employer in which the fact of his holiday time is sworn to.

3. In the event that the father does not notify the Independent Children’s Lawyer and the mother by 5.00 pm on Tuesday, 3 April 2018 that he is able to have leave from work between 6 April 2018 and 13 April 2018, then the children shall spend time with the father from 3.00 pm on Friday, 6 April 2018 (with the father to collect the children from the McDonald’s Restaurant, Suburb R Shopping Centre, Suburb R Street, Suburb R at the commencement of time) until 3.00 pm on Sunday, 8 April 2018 (with changeover to occur at the K Town Shopping Centre).

4. Unless otherwise agreed between the parents in writing, the children shall spend time with the father as follows:

   (a)from after school on Friday, 20 April 2018 (with the father to collect the children from Suburb R State School at the commencement of time) until 3.00 pm on Sunday, 22 April 2018 (with changeover to occur at K Town Shopping Centre); and

   (b)from after school on Friday, 4 May 2018 (with the father to collect the children from Suburb R State School at the commencement of time) until 3.00 pm on Sunday, 6 May 2018 (with changeover to occur at K Town Shopping Centre);  and

   (c)from after school on Friday, 18 May 2018 (with the father to collect the children from Suburb R State School at the commencement of time) until 3.00 pm on Sunday, 20 May 2018 (with changeover to occur at K Town Shopping Centre), with time to occur each alternate weekend thereafter.

5. In the event that the father is able to have leave from work during the time the children shall spend time with him in the June/July 2018 school holiday period, then the children shall spend school holiday time with the father from after school on Friday, 29 June 2018 (with the father to collect the children from Suburb R State School at the commencement of time) until 3.00 pm on Friday, 6 July 2018 (with changeover to occur at K Town Shopping Centre).

6. The alternate weekend time pursuant to Clause 4c of this Order is suspended during the June/July 2018 holiday period.

7. Unless otherwise agreed between the parents in writing, the children shall spend time with the father each alternate weekend commencing from after school on Friday, 20 July 2018 (with the father to collect the children from Suburb R State School at the commencement of time) until 3.00 pm on Sunday, 22 July 2018 (with changeover to occur at K Town Shopping Centre), which such time to occur each alternate weekend thereafter.

AND IT IS FURTHER ORDERED THAT

1. The mother’s oral application made today for sole parental responsibility is dismissed.

AND IT IS FURTHER ORDERED THAT

1. 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 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

Ms Darley

Applicant

And

Mr Darley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have had the matter returned before me as a consequence of my inability to finalise it in the manner I informed the parties I had hoped to be able to do when they were last before me, on which occasion the trial came to a conclusion and I reserved my decision. 

2. In the course of preparing, but unfortunately not finalising, the matter prior to Easter (that is, last week), I appreciated more fully that the existing interim parenting orders did not necessarily provide for the time the children are to spend with their father pending the finalisation of the matter by way of the making of final orders and delivery of reasons in support of the same.

3. As a consequence of that realisation, I caused the matter to return before me today during the school holiday period the children are currently experiencing. 

4. Each of the parents appears in person on their own behalf, and I am assisted by the presence of the Independent Children's Lawyer, Mr Kingston who appears in person before me.

5. The purpose of today is to work out what interim parenting orders should be put into effect to deal with the interim arrangements for the children's weekend and school holiday interaction with their father pending the finalisation of the matter, something which I hope to bring to effect by the end of the month at the latest: in any event, having learnt from my past experience, I certainly intend to make orders that deal with the June/July school holiday period also. 

6. In a nutshell, Mr Kingston submits that the appropriate parenting order and one which is in the children's best interests following upon earlier interim parenting orders (including that which I made on 25 October 2017 and, secondly, on 14 February 2018) are orders which would see the children afforded the opportunity to spend the second half of the Easter holiday period with their father (that being from 6 April to 13 April);  that they then resume an alternate weekend time regime (from Friday after school till Sunday at 3.00 pm) with that time to recommence on 27 April 2018;  that they have then afforded to them the opportunity to spend time with their father during the first half of the June/July school holiday period this year, from Friday, 29 June to Friday, 6 July (so as to facilitate one changeover occurring from school rather than in a public place - namely, McDonald's Suburb R - at the commencement of time and K Town Shopping Centre at the conclusion of time);  and that, thereafter, the alternate weekend time recommence on Friday, 20 July 2018 and continue.

7. Mr Kingston submitted that such orders are appropriate and in the children's best interests, as I have said, given the time that they have previously spent with their father pursuant to the Orders that have previously been made on an interim basis. 

8. Mr Darley supports the submissions made by the Independent Children's Lawyer.  Given the lateness with which this hearing has been brought on and in response to questions asked of him by me, he has informed the Court that he is not sure about whether he, in fact, will be able to take a week's holiday at this late notice.

9. He says he would be able to inform the Independent Children's Lawyer and Ms Darley by 5.00 pm today - and inform them in writing by the provision of information from his employer - about whether this is the case or not.  In the event that he is unable to take, with this late notice, a week away from work between 6 April and 13 April, he seeks to spend time with the children from 3.00 pm on Friday, 6 April to 3.00 pm on Sunday, 8 April.  That is the "usual" weekend time, by which I mean the alternate weekend time that has previously been ordered on an interim basis.

10. Ms Darley opposes the making of an order that the children spend alternate weekend time with their father in the manner that has previously been ordered.  She reiterates her position that there should be daytime only time on a Saturday once a month and that there be no time during school holidays.  She also seeks, by way of interim order, that I make an order for sole parental responsibility because she says there are decisions that need to be made of a paediatric and other medical (or associated medical nature) which are frustrated by the absence of such an order.

11. Ms Darley also submits that - and I record, of course, that this is a submission from the bar table (this is not a criticism of Ms Darley, just a statement of fact) - Mr Darley failed to attend at a specialist paediatric appointment in March: this is a further basis upon which she relies for her submission that it is appropriate and in the children's best interests that a sole parental responsibility order (if I might summarise it in that way) be made in her favour on an interim basis.  She relies and emphasises again that there are certain special needs that need to be addressed: given those, she says a routine of alternate weekend time is not something which is in the children's best interests.

12. Ms Darley reiterates the father's actions in returning the children to her suffering from sunburn (about which there was much evidence at the trial) and, most recently, on Christmas Day 2017.  She refers to evidence received during the most recent hearing about an event on which it appears that one of the children found some rat poison in a room in the father's home and perhaps ingested it.  So, she relies upon those matters as a basis for her submission that the children's time with their father should be curtailed and should not occur during school holiday periods.

13. Her alternative position (in the event that I am not persuaded by her submissions that it is in the children's best interests for their time with their father to occur on one day per month - on a Saturday - and not during school holidays) is to submit that the children should spend no more than a maximum of three nights with their father during school holiday periods.  She joins with, in a sense, the submission of the Independent Children's Lawyer that that time occur in the June/July school holiday period at the commencement of the holidays and that there be the alternate weekend time; of course, this is very much her secondary or ancillary submission and something advanced only in the event that I am not persuaded by her primary position.

14. Ms Darley has also raised that, on the regime of alternate weekend time, if ordered, the children would spend time with their father for the weekend on which Mother's Day occurs: she seeks that the children be afforded the opportunity to remain in her care for that weekend. 

15. I take into account, of course, and am cognisant of the comments of the Full Court of this Court in Goode & Goode[1] and, more particularly, it seems to me, in the later case of Banks,[2] given that that dealt with the manner in which a trial judge should approach and focus upon issues in the making of interim orders.

    [1] (2006) FLC 93-286.

    [2]          Banks v Banks (2015) FLC 93-637.

16. I am persuaded in this case, given the time the children have spent with their father pursuant to the Order I made on 25 October 2017 and taking into account the matters raised by each of the parties in their affidavit material during the course of the trial (about which I am yet to finalise my findings) that it is appropriate and in the children's best interests that they are afforded the opportunity to spend a block of time with their father during the current school holiday period if he is able to obtain that time away from work.  That is particularly relevant given that Mr Darley is a tradesman and the very nature of his work is such that he is required to leave home very early in the morning: thus, of course, he would not be available to the children and to care for them if he were otherwise at work on that occasion.

17. I am persuaded on an interim basis, notwithstanding the submissions made by Ms Darley, that it is appropriate and in the children's best interests that they have the opportunity to spend from 3.00 pm on 6 April until 3.00 pm on 13 April with their father provided that he provides to the Independent Children's Lawyer and the mother by 5.00 pm today, 3 April 2018, a written document from his employer (which will later be sworn to and filed by way of affidavit) - a statement - assuring that he has that week away from work. 

18. So what I have in mind is to make an order that, in the event that the father provides to the Independent Children's Lawyer and the mother a written document from his employer outlining that he has the week off, that he file and serve by 4.00 pm on Tuesday, 10 April 2017 an affidavit from that employer in which the fact of his holiday time is sworn to.

19. I will make an order that, in the event that Mr Darley does not notify the Independent Children's Lawyer and the mother by 5.00 pm today that he is able to have a week's holiday between 6 April and 13 April 2018, then the children shall spend time with him from 3.00 pm on 6 April 2018, with him to collect them from the McDonald's Suburb R (at the Suburb R City Shopping Centre, Suburb R Street, Suburb R) at the commencement of time, until 3.00 pm on Sunday, 8 April, with changeover to occur then at the K Town Shopping Centre. 

20. I will also make an order, because I am persuaded that it is in the children's best interests and appropriate on an interim basis, for there to be a continuation of the alternate weekend regime by which they are afforded the time to spend alternate weekends with their father: they will recommence spending that alternate weekend time at 3.00 pm on Friday, 20 April to Sunday, 22 April 2018, on the same terms as ordered in the Order made 14 February 2018 (which terms I will include in the Order when it issues, namely, collection by the father from school at 3.00 pm at the start of the time and collection by the mother at the conclusion of the time at 3.00 pm at the K Town Shopping Centre) and such time occur each alternate weekend thereafter. This will mean that time will then occur between 4 May and 6 May 2018 and between 18 and 20 May 2018 and thereafter.

21. That being the case, the children would, in fact, be in their mother's care for the weekend of 11 to 13 May 2018: that being the weekend on which Mother's Day occurs. In that way, they are quite properly, in my view, accorded the opportunity to spend that important celebratory time with her. 

22. Insofar as the June/July school holiday period is concerned, I am persuaded that, in the event that the father is able to have that time away from work, it is appropriate and in the children's best interests that they have the opportunity to spend time with him for half of that school holiday period, being from 3.00 pm on 29 June 2018 (which is the last day of school term) until the following Friday, 6 July 2018 - with the father to collect the children from school at the commencement of that time and changeover at the conclusion of that time to occur at 3.00 pm at the K Town Shopping Centre.

23. In that way, the children will have the opportunity to spend the time during the first half of the holidays with their father, a proposal insofar as the “first half proposition” part of it that is supported by Ms Darley, although, of course, she does not support the duration of that time. 

24. The children's alternate weekend time will then recommence on Friday, 20 July 2018 (with the father to collect them from school at 3.00 pm at the commencement of that time) and their time shall conclude at 3.00 pm on Sunday, 22 July 2018 (with changeover at that time to occur at the K Town Shopping Centre) and such time shall occur each alternate weekend thereafter.

25. I decline, at this stage, the application made orally by Ms Darley for an order according to her sole parental responsibility. Of course, I note the imperative for the finalisation of this matter as soon as practicable: that is certainly something that has not escaped me. 

26. For those reasons, then, I have made the orders that I have outlined in the course of delivering these Reasons. Orders will issue in those terms.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 3 April 2018.

Associate: 

Date:    5 April 2018