Davis and Hadlow (No 2)

[2019] FamCA 283

FAMILY COURT OF AUSTRALIA

DAVIS & HADLOW (NO. 2) [2019] FamCA 283

FAMILY LAW – ORDERS – Variation – Where the parties are unable to agree on a location for handover of the subject child – Where the dispute is related to the convenience of the parties – Where the contact service is unable to facilitate handover on one of the two days – Where there should be consistency in the arrangements for the child.

APPLICANT: Ms Davis

RESPONDENT: Mr Hadlow

FILE NUMBER: ADC 3076 of 2017

DATE DELIVERED: 2 May 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 16 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Andersons Solicitors

COUNSEL FOR THE RESPONDENT: Mr McQuade

SOLICITOR FOR THE RESPONDENT: Janson Lawyers

Orders

1. That order 3 of orders made 17 December 2018 be discharged.

2. NOTING that the father is required to sign a Service Agreement to complete his enrolment in the K Children’s Contact Service, the father do all things necessary to complete his enrolment for the purposes of handover within seven (7) days of this date.

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 Davis & Hadlow 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 ADELAIDE

FILE NUMBER: ADC 3076 of 2017

Ms Davis

Applicant

And

Mr Hadlow

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 16 April 2019, a consent order was made that Mr Hadlow (“the father”) spend time with Z born in 2016 (“the child”) as follows:-

   a)Each Saturday from 10.00 am to 4.30 pm commencing 22 December 2018; and

   b)Each Thursday from 10.00 am to 4.30 pm commencing 27 December 2018;

   PROVIDED that the father’s time with the father is supervised by the paternal grandfather.

2. Handover was to take place at a children’s contact service upon the parties being accepted, however, until that occurs handover is to occur at the Subway Restaurant, L Street, Suburb N.

3. Ms Davis (“the mother”) seeks that the father complete the enrolment with the K Children’s Contact Service pursuant to the order of 6 March 2018.

4. The father resists the completion of the enrolment process and in his Amended Response filed 12 April 2019 seeks that orders 2 and 3 of orders made 6 March 2018 and order 3 of orders made 17 December 2018 be discharged and that thereafter all handovers take place inside the entrance of the Subway Restaurant.

5. It is conceded that whilst the Contact Service can facilitate the child’s time with the father on Saturday, it is not available to assist the parties on Thursday.

6. The mother accepts that for the purpose of the time spends with the father on Thursday handover will occur at the Subway Restaurant.

Handover location

1. The parties remain unable to agree whether handover on Saturday should be at the Contact Service or at the Subway Restaurant.

2. It is difficult to understand how this issue continues to confound the parties. Significant time, cost and emotional energy has been expended on this issue.

3. The mother relies on the order and seeks the father’s compliance. She argues that the issues relevant to the Court considering that the Contact Service was the most appropriate for handover to occur has been heard and determined.

4. Upon further enquiry of counsel, it was revealed that the Contact Service was the mother’s preferred handover point because of its convenience to the paternal grandfather.

5. Whilst the previous and current orders did not restrict or restrain the parties themselves from effecting handover, apparently a practice has developed whereby each of the parties utilise members of their family rather than to attend personally. Whilst not exclusively the case, the maternal and paternal grandfathers have been predominantly involved.

6. The paternal grandfather is available to effect handover on Thursday, but Saturday is inconvenient to him.

7. For his part, the father contends that he takes his sons to football each weekend. They apparently play in the southern suburbs and on Saturday the game finishes at 9.30 am. He is not able to guarantee that he could be at the Contact Service earlier than 10.00 am to comply with the request of the Contact Service management that parties be present 15 minutes before the handover.

8. He is concerned that if there is a delay in the football game, or that he is delayed by traffic or other factors out of his control then he might not get to the Contact Service before 10.20 – 10.30 am.

9. The issue therefore appears one of convenience to the parties.

10. I do not consider that the test as to whether handover should take place at a contact service should be determined by reference to the convenience of the parties. The purpose of handover at a Contact Service is to ensure that the parties do not come into contact with each other and the child is able to transition between them without conflict.

11. I accept that if the handover was at a Contact Service the mother would be able to attend. The difficulty is that the orders that the parties now seek would require the father’s time spent with the child on Thursday to be at a different venue.

12. There is importance in the child remaining separate to the clear internecine conflict between the parties.

13. I am unconcerned how the parties are to arrange their personal affairs and in particular those that they choose to involve in the arrangements with respect to the child transitioning from one party to the other, but where there is no order that requires the parties to be absent from the handover, the fact that they choose not to attend personally and that they then involve others is a matter entirely of their own choosing.

14. There should be consistency with the handover arrangements and as such the default position must be the Subway Restaurant or such other place as the parties may agree.

15. The mother’s opposition is based upon an apprehension that there may be conflict if she attends. I am not able to divine what is likely to happen in the absence of evidence that would allow me to form a view on the balance of probabilities.

16. At this stage I will discharge order 3 of orders made 17 December 2018, but leave in operation the father’s obligation to enrol in the Contact Service as contained in the order of 6 March 2018. I will require the father to complete the enrolment by signing the Service Agreement within seven (7) days of this order.

Conclusion

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 2 May 2019.

Date: 2 May 2019