Delaney and Delaney

[2015] FCCA 3606

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELANEY & DELANEY [2015] FCCA 3606

Catchwords:
FAMILY LAW – Compliance with court Orders – adjournment of final hearing – additional spend time with – updated family report.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MR DELANEY

Respondent: MS DELANEY

File Number: DGC 2631 of 2014

Judgment of: Judge Small

Hearing date: 25 November 2015

Date of Last Submission: 25 November 2015

Delivered at: Dandenong

Delivered on: 25 November 2015

REPRESENTATION

Counsel for the Applicant: Mr Puckey

Solicitors for the Applicant: Taussing Cherrie Fildes

Counsel for the Respondent: Mr Ambrose

Solicitors for the Respondent: Trapski Family Law

ORDERS

1. In addition to the time set out in the orders of 8 May 2015, the children shall spend time and communicate with the father from after school until 7.30 pm on each alternate Monday during school terms, commencing on 7 December 2015.

2. Otherwise, the orders of 8 May 2015 remain in full force and effect.

3. Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the children W born (omitted) 2001, X born (omitted) 2002, Y born (omitted) 2004, Z born (omitted) 2006, (“the children”) and the parties attend upon a Family Consultant Mr T to be paid for at first instance by the Father and Mother in equal shares for the purposes of the preparation of a Family Report, such report to be annexed to an affidavit sworn by Mr T and filed with the court no later than 30 September 2016.

4. The Family Report to deal with the following matters:

   (a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)the likely effect on the children if the Court were to make Orders in terms of the father’s/mother’s proposed orders;

   (d)any other matters that the Family Consultant considers important to the welfare or best interests of the children.

5. The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant. 

6. If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party deliver or cause to be delivered to the Family Consultant copies of the following documents:

   (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

   (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

   (c)any family violence intervention or restraining orders currently in force.

7. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

8. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

9. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant of his or her need to attend Court no less than seven (7) days prior to the Final Hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2631 of 2014

MR DELANEY

Applicant

And

MS DELANEY

Respondent

REASONS FOR JUDGMENT

1. The matter of Delaney comes before me today listed for final hearing but in circumstances where the matter is unable to progress, partly because the property section of the proceedings is not ready - that is there are certain matters that are not certain in relation to the property.  That is a great disappointment to the court, could I say, because the parties have had a long time to organise their finances and to check bank statements and do all of that but, nevertheless, they come today saying, “No, we can’t go ahead.”

2. They can’t come to agreement on children’s matters, and they have asked me to make a decision on these matters on an interim basis.  I have adjourned the final hearing to 19 October 2016, some 11 months hence.

3. The issue before me today is whether the time that the four children - W born (omitted) 2001, X born (omitted) 2002, Y born (omitted) 2004, Z born (omitted) 2006, spend with their father ought be increased by one night per fortnight.

4. I come now to the last two sets of orders that I’ve made in this matter - the first was made in November of 2014, and it included a Monday evening where the children spent time with their father and then their father returned them to their mother.  The orders that I made in May of 2015 did not include that order, and I have to say that on reading the judgment that I delivered on that day I, too, cannot see a reason why I might have removed that time.  It may have been inadvertent.  There may have been reasons for it. I cannot tell at this stage.

5. The only thing that has changed since those Orders were made is that I now have the second report, I think it is - at least, the most recent report of Mr T, psychologist, who has prepared at least two family reports in this matter and who has set out the children’s wishes in very clear terms.

6. W is 14 and three quarters, and she has said very clearly that she wants another night with her father.  X said he wants two nights with his father.  Y and Z both want it to be “fair”.  They want it to be equal time.  And Mr T points out that that wish is very common in children of that age, that they want to be fair.  They don’t want to feel like things are unfair for their parents, because they love both parents.  That’s perfectly normal.

7. That seems to be the crux of the matter.  Mr Ambrose, for the wife, says that the negativity that I set out and discussed in my previous judgment is a reason why I should not add another night, and the issue is whether the fortnightly time should be Thursday to Monday or Friday to Monday, and the children, as I said, have made their wishes very clear.  And Mr Ambrose says, quite rightly, that the children’s wishes are only one of the things I need to take into account and, indeed, they are, but W and X are getting to the stage where their wishes hold quite a bit of weight.

8. The matter will not come before me again for another 11 months unless something drastic happens in the meantime, and I can only hope that that will not be the case. 

9. Can I say that one of the issues for me in this matter was that the parties filed their trial material yesterday, having been ordered to file it 14 days before trial and Mr T’s most current and most recent report is dated 10 November.  I don’t think that it is acceptable.  And, could I say, there is not, written in invisible ink at the end of the trial directions, a clause that says the parties shall file their material 14 days before trial “unless the family report has not been released”.

10. I expect people to comply with court orders.  They are court orders, and it is one of the things that has been quite frustrating about this matter, because I simply have not had the opportunity at this stage to read the parties’ most recent affidavit material.  So what I have is the affidavit material from before that, but I have read Mr T’s latest report.

11. This is an issue where, of course, the issue is not what the parents want.  It is what is in the best interests of the children.  The children have made their wishes clear, and while they are not determinative it does indicate a relationship with their father that is a positive relationship.  It indicates that they feel that they want more time with him and, certainly, the nature of the relationship is something I need to take into account.

12. I’m told from the bar table that the parties are spending birthdays together and that they will be spending Christmas together as a family this year.  That is a very positive sign that perhaps these parents may be able to cooperate for the sake of their children, and I certainly hope that that is so.  Nevertheless, this was, as I said, supposed to be a trial.  We won’t be back at trial now for another 11 months.

13. Mr Ambrose says that I should not make an Order for an extra night because that’s a matter for trial.  I tend to agree with that.  It would seem a bit somewhat opportunistic, could I say, and I don’t mean that in a necessarily critical way at all, for the father to say, “Well, I can’t make agreements about final children’s orders today because I need some information from the school.” I find that an extraordinary statement, to be perfectly honest.  The school has been there throughout the proceedings and the parties could have obtained that information at any time.  So to say that they need information from the school is, in my view, not a particularly good reason for not coming to an agreement. 

14. Nevertheless, it is, in my view, when I think of all the things - and I’m not going to go through everything in section 60CC which tells me what I need to consider when I am making Orders in the best interests of the children - that it is not appropriate at this stage.

15. This is an Interim Hearing.  None of the evidence has been tested.  Nothing is different from the time when I made the decision in May, other than the report of Mr T which simply says the children want the time.  The children have expressed that as an extra night or an extra two nights or half time, and I think it appropriate to reinstate the Monday time, so that on each alternate Monday, on the Monday before the weekend that the children spend with their father, that they spend time with him from after school, in addition to the time set out in the orders of 8 May 2015.

16. So in the matter of Delaney, I make the following orders, they being interim orders:

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 11 April 2016