Davis and Spring (No. 2)

[2007] FamCA 874

FAMILY COURT OF AUSTRALIA

DAVIS & SPRING (NO 2) [2007] FamCA 874

FAMILY LAW – Children – Interim time spent with child – hearing to resume next week

Family Law Act 1975 (Cth)

APPLICANT: MRS DAVIS

FIRST RESPONDENT FATHER: MR DAVIS

SECOND RESPONDENT MOTHER: MS SPRING

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 111 of 2006

DATE DELIVERED: 17 AUGUST 2007

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 17 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR PINNER

SOLICITOR FOR THE APPLICANT: RUTHERFORD & CO

COUNSEL FOR THE RESPONDENT: MR McGOWAN

SOLICITOR FOR THE RESPONDENT: JULIE TAYLOR

COUNSEL FOR THE INTERVENOR: MS SWART

SOLICITOR FOR THE INTERVENOR: HALE & WAKELING

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS BRENNAN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: O'HALLORAN DAVIS

ORDERS

1. THAT the further hearing of all extant applications be adjourned part-heard before Young J. at 10.00 a.m. on Monday 27 August 2007.

2. THAT the child spend time with her mother from 10.00 a.m. Saturday 18 August 2007 until 10.00 a.m. Friday 24 August 2007 (inclusive).

3. THAT the changeovers occur primarily between the paternal grandmother and the mother at … , Morwell, punctually at 10.00 a.m. on the appointed days.

4. THAT the mother, her servants and agents be and are hereby restrained from removing or permitting the removal of the child from the State of Victoria and, more particularly, the child is to remain in the Gippsland area until further order of the Court.

5. THAT at all times during this period of time to be spent by the mother with the child she and the paternal grandmother are to have each other’s current mobile telephone numbers or home landline telephone numbers and if there is any medical or other issue with the child the paternal grandmother and the father are to be notified immediately.

6. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

IT IS NOTED

A.THAT the period for the mother to spend time with the child was made by the Court and without specific submissions from any counsel but on the basis of all evidence heard over the past five days and what the Court determined on an interim basis to be in the best interests of the child.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as Davis & Spring.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 111 of 2006

MRS DAVIS

Applicant

And

MR DAVIS

First Respondent Father

And

MS SPRING
Second Respondent Mother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Davis & Spring is part-heard and will remain before me, resuming on Monday, 27 August 2007.  These brief extempore reasons are made after five days of hearing evidence.  I do not propose to traverse any of the evidence but I well understand the circumstances of the child’s life to date and more particularly the time that she has not had of recent periods with her mother or extended maternal family.

2. There is an existing interim residence order in favour of the paternal grandmother with which I will not now interfere.  There is, however, going to be an order for the mother to have time spent with the child, provided that it is within the Gippsland region.  The mother is not under any circumstance to remove the child from the Gippsland region and absolutely not from the state of Victoria.

3. The issue then is as to an appropriate period of time and my sole determining reasoning is as to the best interests of the child.  It is a period that must give the child an initial re-establishment experience with her mother and others of her Aboriginal heritage.  It, however, must not be of such length as to discomfit or put at unrest the child.  There does need to be a level of cooperation between adults on changeover and this will be the simplest of tests as to what may or may not succeed in future years.

4. What I regard as being necessary and in the child’s best interests is for a changeover to occur at 10 o'clock tomorrow, Saturday morning, at Morwell.  I propose that the child will then remain with her mother consecutively and without interruption until Friday morning at 10.00 a.m., at which time the changeover will be at Morwell punctually at 10.00 a.m. with the mother to deliver the child to the paternal grandmother. 

5. It should go without saying that I record in these reasons that the mother's responsibility is to care for, provide for, and ensure all aspects of care for the child.  I hope there will not be a scenario of them having any issues with the child on her return.  The paternal grandmother will by instinct know how the child is.  If the father wishes, and without comment or involvement, he may attend at changeover, but predominantly it is to be the paternal grandmother and the mother.

6. I will have these brief reasons transcribed, placed upon the court file, and of course the matter will be back before me on Monday, 27 August 2007, at 10.00 a.m. on all issues, including any matter that may arise out of these interim orders.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date: 24 August 2007