Findlay and Boa

[2007] FamCA 1355

FAMILY COURT OF AUSTRALIA

FINDLAY & BOA [2007] FamCA 1355

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Family report ordered

Family Law Act 1975 (Cth)

APPLICANT: Mr Findlay

RESPONDENT: Ms Boa

FILE NUMBER: MLC 11488 of 2007

DATE DELIVERED: 25 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 25 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J.L. Stewart

SOLICITOR FOR THE APPLICANT: Wilson Lawyers

COUNSEL FOR THE RESPONDENT: Mr R.P. Hutchins

SOLICITOR FOR THE RESPONDENT:

Orders

BY CONSENT

1. That paragraph 3 of the orders made in the Family Court of Australia at Melbourne on 18 October, 2007 shall be discharged.

2. That until further order the child of the marriage … born … October, 2000 shall live with the wife as follows:

   (a)(NOT BY CONSENT) During school terms each week from after school Friday until the commencement of school on Monday (or Tuesday if the Monday is a non-school day for the child);

   (b)During the 2007/2008 long summer holidays as follows:

   (i)     From after school on 21 December, 2007 to 12 noon on 24 December, 2007;

   (ii)    On a week about basis commencing at 4.00 p.m. on 28 December, 2007; and

   (c)At such further or other times as may be agreed between the parties.

3. That until further order the child shall live with the husband all other times.

4. That in the event that either of the parties, when the child is living with them, is unable to be in attendance with the child for a period in excess of 6 hours, then that party shall offer the other party the first option of caring for the child during the period they are unable to be in attendance.

5. That the parties shall attend upon Mr V for the purpose of the preparation of a Family Report in relation to the child.  In the first instance the husband shall be responsible for Mr V’s fees without prejudice to his right to seek reimbursement of those fees (or half of them) from the wife upon further hearing.

6. That until further order the parties each, by themselves, their servants or agents shall be and are hereby restrained from removing or attempting to remove, or causing or permitting the removal of the child, … born … October, 2000, from the Commonwealth of Australia.

7. That the Australian Federal Police shall place the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

8. That the solicitors for the husband shall serve a sealed copy of these orders upon the Proper Officer of the Australian Federal Police at 383 La Trobe Street, Melbourne, and by facsimile on … and it is requested the Australian Federal Police give effect to this order.

9. That all extant applications shall be adjourned to 24 January, 2008 in the Judicial Duty List at 10.00 a.m.

10. That pursuant to s 65DA(2) and s 62B, 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.

11. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11488 of 2007

MR FINDLAY

Applicant

And

MS BOA

Respondent

REASONS FOR JUDGMENT

1. The parents have separated just in the last few weeks, in terms of the mother moving out of the former matrimonial home. 

2. The parties have agreed that Mr V will prepare a Family Report and that the case will return to court at the end of January, with the benefit of that report.  They have apparently reached an agreement about a number of the arrangements between now and then, most particularly for arrangements over the summer school holidays when both parents will be spending substantial periods of time with their seven‑year‑old daughter.

3. The issue for me is how to configure the next eight weeks of school term time.  The father wants the child to be with him during the week and with her mother at week-ends.  The mother wants the child to be with each parent week about.  She says that follows the regime that was put in place by final court orders in May 2005.  It should be noted though that shortly after those orders, the parties resumed residence under the one roof, and except for one short break, that is the situation that remained until late September.

4. The principles that govern an interim parenting case are set out in Goode's case, which is clear about the principles under the Family Law Act that I must apply.  In this case though, as both parents agree that the child will spend a substantial and significant time with the other parent, the configuration of the time is the very narrow issue with which I am left, made the more narrow by being for a very short period.

5. In summary, the father says that I should take into account that he has been the primary caregiver of the child while the parents have been residing under the one roof.  He says the mother has been running several businesses in Vietnam and has been there about half the time, and he says that when she is in Australia the mother has been out of the home a great deal. 

6. The father says that the child is very well settled in the western suburbs area at both her school and in her home and in the various after‑school activities in which she is engaged.  He says that a change of arrangements during the week would be disruptive.  He says that due to his profession he has a considerable amount of time available in which to care for the child as he is only required to work half the year and that a number of those days are in fact days when he is only on call.

7. According to the father, the mother is in a very new relationship - with a man who has been referred to in front of me today only as “[T]” – a relationship with which the child is not yet comfortable or happy.  T is at court today with the mother.

8. The mother for her part disputes what the father says about him being the primary caregiver.  She denies that she has been in Vietnam for the sorts of periods suggested by him, although I must observe that when her counsel was pressed by me and specific instructions were taken, it became clear that she had in fact been away this year without the child for a total of about four months, which, prior to separation, was getting close enough to half the time, as the husband had said.

9. The mother says though that her sister is going to take a greater role in the business in Vietnam, so she will be required less in Vietnam.  She says that she has been out of the home a fair bit, but that has been because it has been stressful at home. 

10. The mother says she is now living in appropriate premises that are clean and tidy and denies the husband's allegation that they are in any way inappropriate or that there is an additional family living there.  The premises is in the north western suburbs, and the mother says she is willing to drive up to 45 minutes in peak‑hour traffic to ensure that the child can attend the school in the western suburbs.  She says that the child wants to live with her, or at the very least, that both parents have been a very significant part of the child’s life and the previous orders for week‑about time should be adhered to. 

11. Both parents have referred to various incidents in the last few weeks since they have been living apart. I cannot make any definite findings about those incidents.  The upshot seems to be that the mother obtained an ex parte interim intervention order in the Magistrates' Court, while the father obtained an ex parte interim living‑with order in this court. 

12. What is clear is that the parties need some short‑term certainty. As I observed to them in the course of submissions, although there is a great deal of heat and emotion in it for them, my task is actually not all that difficult today.  I am doing no more than making a very short‑term decision while more information is gathered, and on any view, the child, very appropriately, will be seeing a great deal of both her parents.

13. On balance, I am going to follow the proposal put forward by the child's father, with a slight adjustment so that the child has three nights each week with her mother and four nights with her father.  I emphasise that that is in no way to suggest any view on my part that she should have longer with one parent than the other; it is just that the week does not divide more evenly than that. 

14. Doing the best that I can with limited information, I have formed the view that until there is further information, the child should remain in her home and her routine during the school week, until the end of the school year.  On any view, the father has cared for her a great deal in the home alone in the course of this year already, so that is settled and familiar territory to her.  Along a similar vein, the wife is now in a new relationship in new premises, and that is something with which the child can become familiar during week-ends whilst maintaining her normal weekly routine. 

15. I emphasise that the arrangements might be entirely different after there has been the benefit of a Family Report, and my hope for the child would be that her parents might arrive at their own decisions about her after they have the benefit of time with Mr V.  She is a lucky girl to have two parents who obviously adore her.  A few weeks now for things to settle down and for the benefit of a bit of perspective on both parents’ parts might well be very good for the child. 

DISCUSSION

1. I will adjourn the case until 10 am tomorrow morning to make the orders that will now be drafter by Counsel.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date:  25 October 2007