Debnar and Debnar

[2020] FCCA 2467

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEBNAR & DEBNAR [2020] FCCA 2467

Catchwords:
FAMILY LAW – Parenting – interim application regarding children’s time with the father – where the children live with the mother and spend time with the father – where the father seeks extended block of time with the children. 

Legislation:

Family Law Act 1975 (Cth) s.11F

Applicant: MR DEBNAR

Respondent: MS DEBNAR

File Number: DNC 199 of 2020

Judgment of: Judge Young

Hearing date: 11 August 2020

Date of Last Submission: 11 August 2020

Delivered at: Darwin

Delivered on: 11 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms Czislowski

Solicitors for the Respondent: Ward Keller Lawyers

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That Orders 3 and 7 of the Orders made 13 May 2020 be discharged.

2. That during school terms, the children spend time with the Father as may be agreed between the parties, but failing agreement, in each fortnight as follows:

   (a)In the first week, from after school (or 3:00pm) Thursday to 5:00pm Saturday.

   (b)In the second week, from after school (or 3:00pm) Friday to before school the following Monday.

3. That during the 2020 school holidays the children spend equal time with both parents as may be agreed, but failing agreement,

   (a)in a five day about block, with the Mother to have the first five days of each school holiday period and the Father to have the second five days of each school holiday period.

4. That during the 2021 school holidays, the children spend equal time with both parents as may be agreed, but failing agreement:

   (a)in a week about arrangement, with the Father to have the first week of each school holiday period and the Mother to have the second week of each school holiday period.

5. That children be permitted to travel interstate or intrastate with either of the parties provided that the party with whom the children are to travel provides to the other party not less than 14 days written notice and provides itineraries, contact addresses and telephone numbers for children whilst they are interstate or intrastate so that children can communicate with the other party at all reasonable times.

6. That Order 2 of the Orders 13 May 2020 and Orders 2 and 3 of these Orders be suspended and the children spend time with the parties as follows during the following days of significance:

   (a)with the Father from after school (or 12:00pm if a non-school day) the day before the Father's birthday to before school (or 12:00pm if a non-school day) the day after the Father's birthday.

   (b)with the Mother from after school (or 12:00pm if a non-school day) the day before the Mother's birthday to before school (or 12:00pm if a non-school day) the day after the Mother's birthday.

   (c)With the Mother from 5:00pm on the Saturday prior to Mother’s Day to before school Monday.

   (d)With the Father from 5:00pm on the Saturday prior to Father’s Day to before school Monday.

   (e)With the parent with whom the children are not living on Christmas Day from 2:00pm to 2:00pm Boxing Day;

   (f)In 2021 with the Father from after school Thursday before the Easter long weekend until 10:00am Easter Sunday and with the Mother from 10:00am Easter Sunday until before school Tuesday following the Easter long weekend.

7. That whether the children are with the Father or Mother, they shall be permitted and the parties shall facilitate calling the other party each alternate day.

8. That forthwith the parties enrol in and attend at “For the Kids” post separation parenting course and provide a proof of completion certificate to the other parent.

9. That the matter be adjourned to the trial call-over list on 29 January 2021 at 11:30am for further directions.

10. Pursuant to s.65DA(2) and s.62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Debnar & Debnar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 199 of 2020

MR DEBNAR

Applicant

And

MS DEBNAR

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim application concerning two children: X, who is five, and Y, who is three. There are currently consent orders in place made on 13 May 2020 which provide for the children to spend four nights a fortnight with their father, Wednesday night to Thursday in each week, and then on alternate weekends from after school Friday to Sunday. A family consultant in a section 11F report recommended that there ought to be an increase in time of at least one night, to five nights a fortnight, on an interim basis.

3. The family consultant recommended that to deal with the mother’s objections, which the family consultant considered legitimate, that change over not be in the middle of the week.  The family consultant accepted it could be disruptive, and the parties also seemed to agree that that is potentially disruptive.  They recommended that the night not be in the middle of the week, but as the family consultant put it, at the beginning or the end of the week.  It is a little difficult to see exactly how that can be accommodated. 

4. The father’s proposal is simply that there be a block of five nights that the children spend with him.  The mother objects to that.  She says that there is evidence that Y, in particular, called her almost tearful during a FaceTime call at one point, because Y was finding the absence from her mother for a longer period upsetting.  These parties do not seem to be able to agree on such matters, which is regrettable.  It is the reason why the family consultant made the recommendation that the parents complete “For the Kids” a post-separation parenting program which is an order I propose to make.  It reflects poorly on these parents that they are unable to agree about what is best for their two very young children.

5. Nevertheless, it is what the court is required to do in cases such as this, where the parents are unable to reach agreement themselves and apparently illustrate quite a high level of mistrust when talking to each other.  Broadly speaking, I am concerned that a five day block is a little long at this stage for Y and in broad terms, I propose to adopt the mother’s proposal, that is, the addition of one night.  The children will spend in week 1, Thursday to Saturday with the father, and in week 2, they will spend from Friday to Monday with the father.  That will be five nights in total.

6. In relation to school holiday time, the children have been spending five nights with their father over the school holidays and it seems there were no complaints, at least to the family consultant, about how that went.  So I propose to make orders that for the school holidays until the beginning of term 1 2021, that the children spend the school holidays with each parent on five-night rotation and then in term 1 2021, they can be on seven-night rotation.  In relation to days of significance, I think there is agreement that the children will spend time with the father on the father’s birthday, and with the mother on the mother’s birthday.  That will be in accordance with the mother’s proposals. 

7. In relation to interstate travel, which I think was an issue, I do not propose to make any orders about that beyond what I have done, that each parent will be permitted to travel wherever they like within the period allotted to them.  I propose that during each period the children are with the father, or indeed with the mother, that each parent shall facilitate the children calling the other parent every second night. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 3 September 2020