Fabell and Fleetwood (No. 2)

[2019] FamCA 68

FAMILY COURT OF AUSTRALIA

FABELL & FLEETWOOD (NO. 2) [2019] FamCA 68

FAMILY LAW – CHILDREN – Interim orders – Where there is a dispute as to whether the younger child should spend overnight time with the father – Where the matter is listed before the senior registrar soon for the making of interim orders – Where no order is made for overnight time pending further order.

APPLICANT: Ms Fabell

RESPONDENT: Mr Fleetwood

FILE NUMBER: SYC 354 of 2019

DATE DELIVERED: 30 January 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 30 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: York Law

COUNSEL FOR THE RESPONDENT: Ms Eldershaw

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. Orders are made in the terms of the document titled “Orders” (Exhibit 1 dated 30 January 2019), as set out hereunder:

   1.In these orders, ‘Y’ means Y born … 2007 and ‘X’ means X born … 2009 (collectively “the children”).

   PENDING FURTHER ORDER: AND THE LISTING OF THE MATTER ON 27 FEBRUARY 2019:

   2.That the children live with the mother.

   3.That Y spend time with the father as follows:

   (a)in Week 1: from after school on Thursday to before school on Monday; and

   (b)in Week 2: from after school on Thursday to before school on Friday.

   4.That X spend time with the father as follows:

   (a)on Thursday 31 January 2019 from 3.00 pm to 7.00 pm;

   (b)10.00 am Sunday to 6.00 pm Sunday 3 February 2019;

   (c)on Thursday 7 February 2019 from 3.00 pm to 7.00 pm;

   (d)from the conclusion of school on Thursday 14 February 2019 to 7.00 pm;

   (e)on 17 February 2019 from 10.00 am to 6.00 pm;

   (f)on Thursday 21 February 2019 from the conclusion of school to 7.00 pm.

   Notation: The father consents to these orders on a without prejudice basis and wishes to press his Application set out in his Response to Application in a Case filed 29 January 2019 so far as these orders relate to X.

   EXCLUSIVE OCCUPATION:

   5.Until 14 February 2019 or 14 days after the settlement of the mother’s new residence at Suburb F (whichever occurs last) the mother have sole occupation of the former matrimonial home at G Street, Suburb F and the father may only attend the property with the consent of the mother in writing and/or to collect and return the children to the mother.

   6.From 24 hours after the expiration of the preceding order, the father shall have sole occupation of the former matrimonial home and the mother shall only attend the property with the consent of the father and/or to return the children to the father.

2. The Court notes save in relation to paragraphs 4(b), (d), (f), (f) and (g) the orders are made by agreement.

3. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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.

4. The return date on 5 February 2019 be vacated.

5. The Court notes that the matter is before the Senior Registrar on 27 February 2019.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fabell & Fleetwood (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC354 of 2019

Ms Fabell

Applicant

And

Mr Fleetwood

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to Y born in 2007 (11 years of age), and X born in 2009 (nine years of age). This matter commenced with an Initiating Application filed 22 January 2019, and it came before me on that day with the mother seeking ex parte orders. The parties had been together from 2004, were married in 2006 and separated quite recently. The mother said they separated in October 2018.

2. There was an arrangement made for the father to take the boys skiing overseas. Ultimately, the parties agreed that the older boy would go with the father and the younger boy would remain with the mother in Australia. The mother explained that the parties were in the course of separating their Region C premises from one into two. The former matrimonial home is at Suburb F, and arrangements have been made to purchase another property in which the mother would live. The agreement had a pattern of residence for the boys between the households which, I think, had the boys spending slightly more time with the mother than the father.

3. The timing of the new purchase did not quite work out, and the father was due to come back from overseas when the mother was still at the former matrimonial home. She sought certain orders and I made different orders, but both with the same aim, to avoid a potentially uncomfortable event involving both boys.

4. The mother’s application was adjourned to today and the parties have reached an agreement about what is to happen. There is just a small issue between them as to what should happen between now and a date at the end of February, when the proceedings are listed before the senior registrar for a hearing about interim parenting arrangements. It is agreed that the boys will live mostly with the mother. It is agreed that the older boy will live in a pattern that is not dissimilar to what was previously agreed and it is agreed that the younger boy will be with the father for less time than the older one.

5. The issue that remains outstanding is whether the younger child has any overnight time with the father pending the interim hearing. It is the mother’s case that she has consulted health professionals and will seek further advice. There is an appointment with a Dr H, I think, at E Town Hospital on Friday and there are later appointments. The mother says in the short-term it would be better that the child remains mainly with her. The father says there are benefits of normalcy and perhaps a need for the younger boy to be with his brother overnight. The contention of the father is that there will be nothing strange about such an arrangement, it having been in place for a significant period. No harm would be done by it and perhaps some good, he contends.

6. There is no right answer to this. I tried to convince learned counsel for the father of the idea of being conservative about it, and she was not impressed by that device. As I say, there is no correct answer to it. We do not have anything from a medical professional to say that one arrangement would be better or worse. And in a sense, this is an arbitrary decision.

7. Favouring the father’s argument is the fact of the boys having more overnight time together. I am told it is an agreed fact that X thinks highly of his brother, and so there would be some support there.

8. This is just a small part of an arrangement that was put in place by the parties. There is an acknowledgement that X and, perhaps, his mother are highly sensitive people, the submission on behalf of the father would be no harm can come as a result of this. The father notes that when the new purchase has been completed, the two households will be only 100 metres apart.

9. For the mother the submission is that the father has conceded that X has difficulty with separation from the mother. There is the objective fact that when X had something of a meltdown after the parties separated, the parties agreed that he should be with his mother. It is submitted that for the short term, just until the senior registrar determines what the interim arrangements should be, no harm can come from X staying with the mother for the time being during the night and having day-only time with his brother at the father’s premises. The senior registrar will have a look at it when there might be a little bit more information from health professional about where X is up to.

10. X is not a baby. His attachments are likely to be settled. It is not as though the mother’s proposal is likely to jeopardise his bonding with his brother, who he presumably sees at school, who he will see in the daytime at his father’s place and he will see at his mother’s home overnight. His relationship with his parents will be well established, and no harm is going to come to those relationships for want of one night or another between now and the end of February.

11. Learned counsel for the parties indicated that reasons formally addressing the legislative criteria were not required.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 30 January 2019.

Associate:  

Date:  18 February 2019