Eddings and Eddings (No. 3)

[2008] FamCA 783

FAMILY COURT OF AUSTRALIA

EDDINGS & EDDINGS (NO. 3) [2008] FamCA 783

FAMILY LAW – CHILDREN - Changeovers

Family Law Act 1975 (Cth)

APPLICANT: Mr Eddings

RESPONDENT: Ms Eddings

INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

FILE NUMBER: BRC 5878 of 2008

DATE DELIVERED: 17 September 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Chambers Hearing

JUDGMENT OF: Murphy J

HEARING DATE: 17 September 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Johnsons Solicitors and Attorneys, Southport

SOLICITOR FOR THE RESPONDENT: The Respondent is self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. To give effect to the orders made on 25 August 2008, changeover for the purpose of the child spending time with his mother shall be as follows:

   (a)At the commencement of all such time, the mother shall pick the child up from his school;

   (b)At the conclusion of all such time, the father shall collect the child from the McDonalds Restaurant at N.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5878  of 2008

MR EDDINGS

Applicant

And

MS EDDINGS

Respondent

REASONS FOR JUDGMENT

1. On 25 August 2008, the parties came before the court for the first judge event in the court’s less adversarial trial process.

2. At the conclusion of proceedings a number of orders were made. Those orders were made having heard evidence from the Family Consultant, who expressed both a hope and a desire that the parties be able to engage in some degree of meaningful communication to the benefit of their child the subject of these proceedings, a son born in October 1993, who, it is to be noted, is nearly 15 years old. That communication had been noticeably absent in the post-separation relationship for a number of reasons, not necessary to be traversed for the purposes of this decision.

3. Within that context, orders were made on 25 August 2008 pursuant to Section 65L of the Family Law Act 1975, together with a report pursuant to Section 62G of the Act.

4. The matter was listed for a continuation hearing on 3 February 2009.

5. Clearly enough, the six month period between the date of the first event and that continuation hearing was provided for with a view to allowing the process contemplated by the orders and s 65L of the Act to be given the opportunity to work in the best interests of the child.

6. At the time of the making of the orders, particularly in light of the hope that the Family Consultant Ms D had expressed with respect to an improvement in the parties’ communication, I indicated to the parties that I expected them to arrive at intelligent changeover arrangements to effect the orders that had been made. With that in mind, I gave the parties the opportunity to advise of those consent arrangements before making orders.

7. Subsequently, the court was advised in correspondence dated 8 September 2008 by Ms McArdle, the Independent Children's Lawyer, that “despite attempts to reach an agreement in relation to the changeover arrangements, no agreement has been reached between the parties and no visits had taken place between [the child] and his mother.”

8. Ms McArdle had been requested by the court to provide a draft of the other orders which I indicated I would make during the course of the hearing.

9. Submissions were subsequently received from each of the parties. I should mention that each of the parties, to one degree or another, raised issues other than changeover. I confine my reasons to that topic, it being the only matter on which I invited submissions in the absence of agreement.

10. The child lives with his father in the Gold Coast region, and the mother resides in the Sunshine Coast region. Accordingly there is a reasonably significant geographical distance between the parties.

11. The material before me reveals that, for approximately four years prior to the making of the orders, the father has travelled to the Sunshine Coast each alternate weekend, so as to avail the child of the opportunity to spend time with his mother. There are allegations and counter-allegations about, on the one hand, the commitment of the mother to spending time with the child, and, on the other hand, alleged unwillingness on the part of the father to comply with orders with respect to time.

12. The mother asserts that it is impractical for her to collect the child from his school on the Gold Coast as she “lives and works on the Sunshine Coast – 200klm away – this would mean a 400klm round trip there and back”.

13. She asserts further that “I do not have the means, finances or a car that can travel long distances, particularly that, while I was in hospital, both my car and my home at […], were left unattended and unsecured. On my return, I was shocked to see that both my car and home were vandalised, maliciously damaged and rank-sacked [sic].”

14. This exemplifies, perhaps, the nature and extent of the conflict and allegations and counter-allegations between the parties.

15. In that context, the mother asserts that changeovers should take place “… in a CENTRAL LOCATION such as McDonalds/Service Station at the North-bound side of the motorway, heading towards the Sunshine Coast, (near but not at Caboolture) at 5.00pm on Friday, returning the child at the SAME location at 5.00pm on Sunday. I made the suggestion in court on 25 August 2008, but I was bulldozed by the father’s barrister.”

16. Thus, on her case, such practical difficulties as exist can be overcome to the extent of those proposals at least.

17. It seems to me whichever proposal might or might not be adopted, practical difficulties will arise with respect to transport and the like. Whatever arrangement might be employed (unless one party is to solely assume the burden of meeting all of the practical considerations resulting from the geographical separation of the parties) some sharing of those burdens will need to, and probably should, take place.

18. Given the nature and extent of the conflict between the parties, and the length of time over which it has taken place, and the allegations and counter-allegations relating to whether parties turn up for time or don’t turn up, or who was at fault for whatever might have occurred, it seems to me that a proposal which sees changeover occurring at a mid-point on a busy arterial highway between Brisbane and the Sunshine Coast, on a Friday evening is likely to be fraught with difficulties.

19. It seems to me that what is in the child’s best interests (particularly given his age) is that the mother should pick the child up from his school at the commencement of time to be spent with her, and the father should collect the child from a public location at N. Given McDonalds is chosen by the mother as part of her proposals, I have chosen McDonalds at N.

20. This will involve each of the parties in sharing the burden and cost of travel by each assuming responsibility for one journey per period of time. It will allow the child to remain in a familiar environment until his mother presents for time with him. It will be compliant with the mother’s wish that the father not attend at, or be near, her place of residence for spending time with changeovers.

21. The involvement of each party in changeover arrangements also allows the child to see each of his parents committing, in a practical way, to the other’s time with him.

22. I have ordered that the mother have the first half of the September school holidays. For school holiday time, with that in mind, I propose that that time should commence, once again, with the mother collecting the child from school. To maintain consistency in arrangements, I will order that return to the father’s care shall take place at the same location as that used for returns for weekend time.

23. I indicated during the course of the hearing before me, to Ms D, that her hopes for improved communication between the parties might be the triumph of hope over expectation. The inability of the parties to reach agreement with respect to what is, in reality, a minor issue in the scheme of things, fills the court with significant pessimism about long-term agreed arrangements in the child’s best interests. Nevertheless, it is noted that Ms D was proposing to see the child shortly prior to the commencement and shortly after the conclusion of holiday time spent between his parents. I hope some assistance might be rendered as s 65L contemplates.

24. More generally, I hope the parties avail themselves of the resources made available pursuant to s 65L of the Act, with a view to attempting to agree all of those arrangements which might be in the best interests of a boy who has slightly more than three years of his childhood remaining.

25. I order accordingly.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  17 September 2008