Edmonson & Albaugh (No 2)

[2020] FCCA 3593

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDMONSON & ALBAUGH (No 2) [2020] FCCA 3593

Catchwords:
FAMILY LAW – Parenting – application in a case filed by the father ­for the child to spend time with the father over Christmas holiday period.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR EDMONSON

Respondent: MS ALBAUGH

File Number: DNC 434 of 2020

Judgment of: Judge Young

Hearing date: 22 December 2020

Date of Last Submission: 22 December 2020

Delivered at: Darwin

Delivered on: 22 December 2020

REPRESENTATION

Counsel for the Applicant: Ms Marris

Solicitors for the Applicant: Marris & Co Solicitors & Barristers

Counsel for the Respondent: Ms Coetzee

Solicitors for the Respondent: Northern Territory Legal Aid Commission

UNTIL FURTHER ORDER

1. That the child X born in 2016 live with the mother.

2. That the child spend time with the father in Queensland for two weeks in January 2021 as follows:

   (a)from 10.00am on 10 January 2021 to 4.00pm on 24 January 2021.

3. That if the child is to travel by air he is to be accompanied by the father with the father to arrange travel for himself and the child at his cost, provide the mother with at least 7 days’ notice of the travel dates including the booking confirmation of return flights and the father’s residential address in City B.

BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER:

1. For the purposes of Order 2 and 3 changeovers are to occur at McDonald’s City D.

Communication

1. That the child shall communicate with each parent that he is not spending time with as agreed but failing agreement three times per week as follows:

   (a)between 6pm – 6:30pm each Tuesday, Thursday and Saturday.

2. The parent with whom the child is not spending time to place the call to the other parent’s mobile phone. The parents are to ensure that their device is charged, switched on and the child is available to receive the call. The communication is to include Facetime if both parties are able to accommodate.

3. The parents are to give the child privacy to talk to other parent during the calls. 

Family Dispute Resolution

1. The parties agree to attend a Family Law Conference at the Northern Territory Legal Aid Commission within 12 weeks of the date of these Orders.

2. That the matter remain listed on 17 June 2021 at 9.30am for further directions.

IT IS NOTED that publication of this judgment under the pseudonym Edmonson & Albaugh (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 434 of 2020

MR EDMONSON

Applicant

And

MS ALBAUGH

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 application concerning a child, X, who is four years old.  I made orders on 21 August about the child when the father sought a recovery order for the child and I refused to make that order for the reasons set out in an interim decision dated 21 August. Essentially I concluded that there were other siblings who were living with the mother in Darwin and I was not satisfied that it was in the child's best interests to return to live with his father alone. The other children are not the biological children of the father.

3. In addition, there was a child inclusive memorandum of that date that I considered, which indicated that one of the older children had told the family consultant that, in effect, they were neglected in the father's care.  One of the children was expressing concern about X, the four-year-old, being in the father's care.

4. On 21 August, there was an interim order made that the child live with the mother and spend time with the father as agreed. 

5. The parties have not been able to agree on Christmas time for the child, and I was presented with an urgent application filed by the father on 17 December, which was last Thursday and served on the mother last Friday; that is, two business days ago.  The mother has filed responding material in a very short time.  She says in substance that she had been negotiating with the father for some considerable period, but they had not been able to reach agreement.

6. The father was seeking an order that the child spend four weeks with him in Queensland and that the mother pay for the costs of travel, although, as the argument unfolded today, he varied that position to seek an order that the mother pay half the cost of travel.  That would involve travel for two adults, bearing in mind that the child is four and could not travel unaccompanied.  If the child is to travel, the father would have to presumably fly to Darwin and then fly back to Queensland with the child.  Similarly, at the end of the two weeks, the mother would have to fly to Queensland, collect the child and fly back, paying her return fare and the child's own fare.

7. She says she cannot afford to do that.  She says that because she was unable to reach an agreement with the father about holiday time, she engaged and paid a sum of $975 to an organisation that provides for vacation supervision for the child.  The child is apparently spending three weeks with that service.  There is a letter annexed to the mother's affidavit which confirms that the expenditure is non-refundable. 

8. It is notable that the father is apparently unemployed and he pays minimal child support.

9. The mother says that the child can spend two weeks in Queensland with the father from 10 January to 24 January but he ought to pay because she cannot afford it.

10. I propose to make the orders sought by the mother.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 21 January 2021