DARWISH & DARWISH

[2015] FamCA 265

FAMILY COURT OF AUSTRALIA

DARWISH & DARWISH [2015] FamCA 265

FAMILY LAW – CHILDREN – Interim parenting – best interests of child – should the children spend holiday time with the father – should the children spend time with the father during the upcoming Easter holidays

Family Law Act 1975 (Cth)

APPLICANT: Ms Darwish

RESPONDENT: Mr Darwish

INDEPENDENT CHILDREN’S LAWYER: Mr Naidovski

FILE NUMBER: PAC 3437 of 2012

DATE DELIVERED: 2 April 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 2 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Burke of Collins & Thompson

SOLICITOR FOR THE RESPONDENT: Mr Tannous of Sage Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Naidovski of Legal Aid NSW Parramatta Family Law

Orders

1. The document headed Minutes of Orders Sought by Respondent Father shall become Court’s Exhibit “A” in today’s proceedings.

2. Orders, pending further order, are made in accordance with paragraphs 2 to 6 of Court’s Exhibit “A”, being:

   1.That pending Final Orders, the Children shall spend time with the Father during the school holiday periods as follows:

   a)For the first half of the Term 1, 2 and 3 school holidays, commencing at 10am on the day after the commencement of school holidays and concluding at 7pm on the day being the half-way point of the school holidays; and

   b)During the Term 4 school holidays for half the school holidays, which shall be broken up as, the first two weeks with the Father, (the next two weeks with the Mother) and then the first half of the remaining holiday period with the Father.

   2.That the regime of the Children spending each alternate weekend with their father set out in order 3 of Court Annexure “A” to the orders of 17 January 2014 is suspended during the school holiday period and is to commence again on the first weekend falling after the end of the holiday period.

   3.That the regime of Sebastian spending time with his father set out in order 3A of Court Annexure “A” to the orders of 17 January 2014 is suspended during the school holiday period and is to commence again on the first Tuesday of the school term period.

   4.In the event that the Children are not already spending time with the Father on the following days, the Father shall spend time with the Children as follows:

   a)from 12pm Easter Sunday until 12pm Easter Monday;

   b)Father’s Day from 9am to 6 : 30pm;

   c)from 3pm Christmas Eve until 3pm Christmas Day.

   5.In the event that the Children are not already spending time with the Mother on the following days, the Mother shall spend time with the Children as follows:

   a)from 12pm Easter Sunday until 12pm Easter Monday;

   b)Mother’s Day from 9am to 6 . 30pm

   c)from 3pm Christmas Day until 3pm Boxing Day.

3. Pursuant to Section 65DA(2) 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 party contravenes these Orders are included in these Orders, annexed hereto.

4. The Respondent father’s legal representative is to forward a typescript of Court’s Exhibit “A” within seven (7) days, in word format.

5. The costs of today’s application are reserved.

6. The Order made on 27 March 2013 for an Independent Children’s Lawyer is discharged.

7. I direct the parties are to attempt to mediate the matters in dispute.

8. The parties are to share equally the costs of that mediation.

9. If the parties can reach final agreement, leave is granted to the parties to file with my Associate executed Consent Orders /Terms of Settlement and if appropriate orders may be made in Chambers and the matter removed from the active pending cases list.

10. If the matter does not settle, the matter is adjourned to a date to be allocated for hearing directions and for this reason the parties are to seek that the matter be listed in the next directions date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Darwish & Darwish has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3437  of 2012

Ms Darwish

Applicant

And

Mr Darwish

Respondent

REASONS FOR JUDGMENT

1. In this matter there has been an application made today with respect to the children spending time with their father during the upcoming Easter holidays.

2. As has been indicated, this is a matter where there have been numerous applications made before each of the school holidays with submissions put and on each occasion the parties have come closer and closer in terms of their position and argument seems to be revolving around extremely minor matters.

3. I have twice given judgments in relation to the best interests of these children with respect to the only matter that seems to be in dispute between the parties and that is the amount of time that they spend with their father.  In particular, on 5 December 2014 I gave a quite detailed judgment with respect to the then application for the upcoming Christmas holidays setting out the various reasons why and having regard to the best interest considerations why what was proposed by the father was in the best interests of the children.

4. What he now proposes is extremely similar to what he proposed then and is extremely similar to what is being recommended as a final order by the Family Consultant.

5. The father has, I note, in fact, compromised his position in the sense that previously he also sought to spend more mid-week time with the children and as I say the position of the parties is extremely close.

6. I do not want to be in the position where before each school holiday period or at any other time prior to the final hearing of this matter that we come back and yet again spend court time arguing over extremely minor differences between the parties.

7. The position put by the mother that it was somehow her understanding that orders made in the middle of last year ought to be the orders that govern the arrangements between the parties pending hearing is not sustainable considering that we were back here again before Christmas and indeed we are back here again.  So this order that I will make today will be the order that will govern the parenting arrangements between now and what appears to be an inevitable hearing in the matter.

8. In that context I have heard submissions made by both of the parties.  The mother indicated that she has no objection in principle to the parties sharing some time with the children together on Christmas Day, the children spending Mother’s Day with her and Father’s Day with the father and, otherwise, the school holidays being shared equally between the parents.

9. The specific objection today in relation to these orders is to the extent to which it relates to this Easter.  It is common ground that Easter Sunday is a day of particular significance for both parents and it has been put on behalf of the mother that because the father spent time with the children on Easter Sunday last year and also Palm Sunday in her words, or through her lawyer, “equity is equity”.

10. This is not a matter that is about equity, it is not a matter that is about what is fair to the parents, it is a matter about what is in the best interests of the children.

11. For the reasons given, in particular, in my judgment on 5 December 2014 in my view it is in the best interests of these children for them to continue to live with their mother and spend every second weekend with their father under the current regime and to spend half of the school holidays and some time on days of particular cultural significance with each of the parents.

12. For those reasons, I make the orders sought by the respondent father today which I marked as Exhibit “A” in today’s proceedings.

13. I make orders in terms of orders 2 to 6 in Exhibit “A”.

14. I also make an order discharging the Independent Children’s Lawyer in the matter.  I wish to make clear and place on the record that I have no criticism whatsoever of Mr Naidovski in his conduct in these proceedings.  Indeed in my view he appears to have attempted to mediate between parties who are exceptionally close in terms of the matters in dispute and has discharged his duties responsibly and appropriately.  It is simply the case that whilst at the time I appointed an Independent Children’s Lawyer I felt it was appropriate in the circumstances in my view there is nothing further that Mr Naidovski can do to assist the parties in resolving the matter and indeed he acknowledges that and indicated that if the matter is to proceed to hearing that he would be seeking to be discharged.

15. I did foreshadow that I would make trial directions but I would like to direct that the parties specifically attempt to mediate one more time the very small matters in dispute between them.  It will now have to be a mediation that they will have to bear the cost of themselves but that will be nothing like the costs if this matter goes to a disputed hearing, so I will not make those directions.  It will be a direction that it be put back into my usual pool for trial directions, unless it is resolved, in which case the parties can approach Chambers with consent orders in the event that that happens.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 April 2015.

Associate: 

Date:  15 April 2015