Ewan and McConchie

[2008] FamCA 282

FAMILY COURT OF AUSTRALIA

EWAN & MCCONCHIE [2008] FamCA 282

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT: MR EWAN

RESPONDENT: MS MCCONCHIE

FILE NUMBER: MLC 3167 of 2008

DATE DELIVERED: 14 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 14 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R.D. Curtain

SOLICITOR FOR THE APPLICANT: Harwood Andrews

COUNSEL FOR THE RESPONDENT: Mr M.I. Grant

SOLICITOR FOR THE RESPONDENT: Campbell & Shaw O’Leigh

Orders

1. That subject to paragraph 2 until further order the child … born … June 2004 (“the child”) live with the father.

2. That until further order the child live with and communicate with his mother:

   (a)       for 2 of 3 three consecutive weekends from 6.00 p.m. Friday to 6.00 p.m. Sunday commencing 25 April 2008;

   (b)       for one half of all holidays;

   (c)       by telephone as agreed between the parties; and

   (d)       other times as agreed.

3. That until further order the father deliver the child at the start of her time to the mother’s residence and the mother deliver at the end to the father’s residence.

4. That pursuant to Section 65DA (2) and Section 62B of the Family Law Act 1975 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 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.

5. That all questions of costs of today shall be reserved.

BY CONSENT IT IS ORDERED:

1. That pursuant to Section 68L(2) of the Family Law Act 1975, the child be separately represented and Victoria Legal Aid is requested to arrange such representation.

2. That forthwith upon the appointment of the Independent Children's Lawyer by Victoria Legal Aid the Independent Children’s Lawyer file a Notice of Address for service.

3. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

4. That all extant applications be adjourned to 4 July 2008 at 9.45 a.m. in the Registrars Duty List.

5. That the parents do all things necessary and sign all necessary documents to appoint through their solicitors and attend an expert to prepare and write a family report at the parents’ equal joint expense.

6. That the mother make file and serve any further material within 28 days and the father within a further 28 days.

7. That liberty be reserved to the parents and independent children's lawyer upon reasonable notice.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3167 of 2008

MR EWAN

Applicant

And

MS MCCONCHIE

Respondent

REASONS FOR JUDGMENT

1. I have a very short term decision to make in relation to the arrangements for a little boy, who is aged three years, nine months.  His parents were in a relationship, but separated in about June 2005.  The child continued to live with his mother and his now seven year old sister T. 

2. On the father's account he spent a very considerable amount of time with the child in the years after separation.  Although I have not heard any detailed submission about that on behalf of the mother, it would seem to be a reasonable account in the sense that she clearly regarded the father as very close to the child and the child very close to the father when she made a decision in August 2007 (on the father's version) or September (on the mother's version) that the child would stay with his father from that time.

3. There is a disagreement between the parties as to whether the agreement was that the child would stay with his father for a six month period as the mother says, or indefinitely as the father says.  In any event, during a period of spending some time with the child about a week or nine days ago, the mother refused to return the child to his father. 

4. Listening to submissions on the mother’s behalf it does not appear that she is alleging any major concern about the child’s care from his father.  She says that the father has recently finished in a relationship, and has moved to live with his mother so that that is a change in circumstances.  But her fall-back position, that is, subject to her primary submission that the child should live with her for the next couple of months pending a Family Report, was that the child should live weekabout with each parent.  I can take it very clearly from that, that there is a concession that the child is quite safe and secure in his father's care. 

5. The mother otherwise bases her case on the fact that the child had always lived with her, was primarily attached to her, and should now live with her again.  The father raises some concerns about the mother's care of the child, alleging an abuse of alcohol by the mother. 

6. I have made it clear to the parties I cannot get to the base of any factual disputes today.  I am being asked only to consider the period between now and July, at which time there will be the benefit of a full family report to help the parents.  It might well be that it is a case where both parents have an enormous amount to offer the child and they are going to have to work out how to do that with the difficulty of distance between them, because they now live, on the father's version, about one and a half hours from each other.  On the mother's version, it is between an hour and an hour and a half from each other. 

7. I am satisfied that if I look at the principles in the Family Law Act there is nothing that provides there must be a sharing of time between parents.  It is also clear since Goode's Case [2006] FamCA 1346 that it is not simply a question of applying the status quo. But Goode's Case also makes it clear that status quo is an important element. 

8. Commonsense would dictate that when looking at the child’s reality of life it is that for the last seven to eight months he has been living with his father.  If I were to upset that in the very short term between now and the return to court, I would be creating a potential situation for him of being upset and unsettled several times over.  He will have gone from living primarily with his mother, to living primarily with his father, to either living primarily with his mother again, or living half time with each parent, before an interim decision that he live with one parent or the other and a potential final decision further down the track.  In the circumstances where there is not suggestion of risk to him in his father's care, that simply cannot be in his best interests at this stage.

9. Nothing in Part VII of the Family Law Act suggests that a best interests test should not apply at this point.  At the same time, it is clear from the legislation, and again commonsense would dictate, that it is important for the child to spend substantial and significant time with each parent.  In this case it is made more difficult because of the geographical distance between them.  The father's proposal is that the child spend two out of three weekends with his mother.  She of course would dearly like as much time with him as possible.  I appreciate that, but two out of three weekends in my view is reasonable, given the travelling time.  Parties could divide the travelling time but the child could not.  He would be involved in all of it and that is a very heavy onus for such a little boy.

10. If the mother is able to visit him at other times then I would want that to happen.  There should be absolutely no reasons why she does not have that sort of access to him, but she is apparently constrained, as many people are, by work, and that being so I am going to make the order as proposed by the father.

11. I want to make it clear to both parents, as I did in the course of argument, that this in no way pre-empts the likely outcome in this case.  I have absolutely no idea what the outcome will be once more material is to hand.  I am doing the best that I can with very limited information at this stage.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  14 April 2008