Galbraith and Jones & Anor

[2012] FamCA 1037

FAMILY COURT OF AUSTRALIA

GALBRAITH & JONES AND ANOR [2012] FamCA 1037

FAMILY LAW – PARENTING – appointment of paediatrician – procedure for applications and discovery.

Family Law Act 1975 (Cth)

APPLICANT: Mr Galbraith

RESPONDENT: Ms U Jones

INTERVENOR: Ms J Jones

FILE NUMBER: HBC 1022 of 2011

DATE DELIVERED: 7 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mooney

SOLICITOR FOR THE APPLICANT: Murray & Associates

COUNSEL FOR THE RESPONDENT: Mr Tresize

SOLICITOR FOR THE RESPONDENT: M & K Dobson Mitchell Allport

COUNSEL FOR THE INTERVENOR: Mr Blissenden

SOLICITOR FOR THE INTERVENOR: Blissenden Lawyers

Orders

1. That until further Order except as otherwise provided by these orders, the children live with the husband and the wife equally on a two-week cycle as follows:

   (a)       in the first week:

   (i)with the husband from 5:30pm Wednesday until 3:00pm Monday; and

   (ii)with the wife from 3:00pm Monday to 5:30pm Wednesday;

   (b)       in the second week:

   (i)with the husband from 5:30pm Wednesday to 3:00pm Friday; and

   (ii)with the wife from 3:00pm Friday to 5:30pm Wednesday.

   (c)That the children shall spend such further or alternate times with each parent as agreed between the parents from time to time.

2. That until 4^th February 2013 B live with the father

   (a)each Wednesday from 5:30 pm until the following Friday morning at 9:00 am; and

   (b)such further or alternate times as agreed;

   (c)save for when B is living with his father he shall live with his mother; and

   (d)the wife facilitate the attendance of B at appointments with paediatricians, speech pathologists, occupational therapists or other health or allied health professionals arranged by the father on reasonable notice, at reasonable times and with reasonable frequency and collect B from such appointments.

   (e)This paragraph ceases to have effect on 4^th February 2013.

3. That until further Order, for the purposes of handovers, unless otherwise agreed, the wife deliver the children to the home of the husband at the commencement of the husband’s time and that the husband return the children to school, child care or to the home of the wife at the conclusion of his time.

4. That notwithstanding any of the preceding paragraphs herein all three children live with the husband between the 30^th December 2012 and 2^nd January 2013 to enable them to participate in the husband’s wedding.

5. That until further Order notwithstanding the preceding orders herein:

   (a)each party may have a two week block period with the children in January each year subject to giving the other party at least one month’s notice;

   (b)each party may have a block period with the children for one half of any of the Tasmanian school term (other than Christmas) holidays subject to giving the other party at least one month’s notice;

   provided that if the parties nominate block periods for the same dates and are not able to agree then by default the arrangements in order 1 herein shall apply.

6. That until further Order if the children would otherwise be living with the wife on Father’s Day then the husband shall spend time with the children between 10:00am and 5:30pm that day.

7. That until further Order if the children would otherwise be living with the husband on Mother’s Day then the wife shall spend time with the children between 10:00am and 5:30pm that day.

8. That notwithstanding the preceding Orders:

   (a)the husband spend time with the children between 12:00 pm and 5:00 pm on 25^th December 2012;

   (b)the husband spend time with the children between 4:00 pm on 24^th December 2013 and 11:00 am on 25^th December 2013 and every second year thereafter;

   (c)the wife spend time with the children between 11:00 am on 25^th December 2013 and 6:00 pm on 26^th December 2013 and every second year thereafter;

   (d)the wife spend time with the children between 4:00 pm on 24^th December 2014 and 11:00 am on 25^th December 2014 and every second year thereafter;

   (e)the husband spend time with the children between 11:00 am on 25^th December 2014 and 6:00 pm on 26^th December 2014 and every second year thereafter;

   (f)each party spend such further or alternate time with the children as agreed from time to time.

9. That until further Order the parties appoint paediatrician Dr C as the primary medical specialist for B and each party shall take all reasonable action to facilitate any recommendations as to any treatment and/or specific care for B including but not limited to education and speech pathology.

10. That until further Order each party shall keep the other party fully informed of all appointments with health care professionals although the parent making such appointment may nominate whether the other parent may attend any such appointment.

11. That until further Order each parent shall keep the other parent fully informed of any significant health care issues concerning the children and ensure that at all times the other parent.

12. That all previous parenting Orders be vacated save as to the interim order for equal shared parental responsibility.

13. That all interim applications and the contravention application filed on 11 October 2012 are dismissed.

14. That the contravention application filed on 11 October 2012 are dismissed but the husband’s costs of that application are reserved to the trial judge.

15. That save as set out in these orders, the husband’s application in a case filed 20 November 2012 and any response thereto is dismissed.

16. That all extant applications for final orders are listed for a FIRST DAY OF HEARING before the Honourable Justice Macmillan at 2.15pm on 6 February 2013 by videolink to be organised by the Court.

17. That the parties and if represented, their legal practitioners, attend the first day of hearing.

18. That notwithstanding applications/responses have already been filed:

    (a)by 4 pm on 14 December 2012, the Applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial;

    (b)by 4 pm on 21 December 2012, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial;

    (c)by 5 pm on 28 December 2012, the Intervener file and serve an amended response setting out with precision the orders to be sought at trial.

19. If discovery and disclosure has not been completed, each party by 4 pm on 21 December 2012 provide to the other party a list of all documents required for inspection and by 4.00pm on 31 January 2013, subject to subject to any objection on the grounds of privilege, such documents be made available for and be inspected by the other party(ies).

20. That the hearing before the Registrar on 16 January 2013 is vacated.

21. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Galbraith & Jones has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: HBC 1022  of 2011

Mr Galbraith

Applicant

And

Ms U Jones

Respondent

And

Ms J Jones

Respondent

REASONS FOR JUDGMENT

1. On 26 March 2012, Coleman J extended orders that had been made on 9 March 2012. These earlier orders provided for the parents of three children to have equal shared parental responsibility on an interim basis. In addition, specific parenting arrangements were set out. Having set out the times that each child was to spend with each parent, the following order appeared:

   For the purposes of the handovers, the wife either deliver the children to the home of the husband or the children be available from after school care/family day care at the commencement of the husband’s time and that the husband return the children to school or to the home of the mother at the conclusion of his time.

2. It was the quoted order that caused the parties to litigate again despite the fact that each has equal shared parental responsibility which would require them to consult and endeavour to reach agreement about something as modest as a handover. Such is the relationship between them that a resolution was impossible and they required court intervention.

3. The Court had a contravention application as well as applications for other interlocutory orders before it and to their credit (and that of their respective lawyers) most issues were ultimately resolved. These reasons only deal with the discrete issue.

4. The husband sought an order that the wife deliver the children to him at the commencement of his time. The wife sought that he collect them from a school or car park area or a McDonalds Store.

5. The genesis of the dispute was that when the March orders were made, both parties lived a block or so away from each other in one of Australia’s geographically smaller capital cities. Some time after the orders were made, the husband moved to a location which is about 20 minutes drive from the wife’s address. He lives there with his new partner.

6. None of that might be seen to be difficult except that the husband rejected the wife’s position because he has work commitments that may not see him available at that time and the wife rejected the husband’s position because she attends a choir practice at 6 pm.

7. As one would expect, the evidence of each party was very limited and neither counsel could point to any specific authority, legislative direction or principle that might guide the Court. The reality must be that this is a discretionary determination focussing on s 60CA of the Family Law Act 1975 (Cth) (“the Act”) to which I shall turn below. In fact, this is what I would consider to be a decision driven by common sense.

8. In her affidavit filed 29 November 2012, the wife said that shall remained unwilling to “consent” to final parenting orders and “the communication and relationship difficulties” between she and the husband have steadily worsened. It is hard to see how litigation is going to resolve that. The husband’s evidence was that the communications went back to separation.

9. The wife pointed to the husband’s material for the March hearing which clearly formed the basis of the orders then made. She referred to a family consultant’s report wherein both parents reported having no intention to move from the central location. The husband disagreed with the interpretation.

10. The wife also referred to later negotiations about this living arrangement. She focused on the fact that the husband was not now living in that central location and that it was “disingenuous” for him to argue that he was. She thought it “unreasonable” for her to be transporting the children to the husband’s new home. That unreasonableness was based upon his change of plans.

11. The wife’s evidence was that she had a longstanding choir commitment which began at 6 pm and that it was “problematic” for her to drive to the new home 20 minutes away. She described this amount of driving as not oppressive but it was not insignificant either.

12. Nothing I read or heard related to how this sort of driving impacted upon the children. I observed in discussion with the wife’s counsel that this was about her convenience and he reluctantly agreed.

13. The husband had sought to have the children at 5 pm but conceded that if it assisted the wife, he would start at 5.30 pm. He said his partner would always be at home at that time.

14. The husband now lives 19 kilometres from the respondent with an estimated driving time of 20 minutes. That was not disputed by the wife.

15. The frequency of the choir issue was also disputed by the husband. Initially, the husband had sought to start the time at 6 pm but he accepted that if the wife provided a list of dates as to rehearsals, it could be at 5.30pm.  The difficulty I have is that such an arrangement would require negotiation and here, on this sort of issue, there is little or none. It is important for the sake of the children that I fix the matter with some certainty.

16. The husband’s evidence pointed to his work obligations and the various arrangements surrounding his partner.

17. The underlying philosophy of the March orders was that the parents would share the travel and equally so. The husband may very well have altered the terms under which those orders were based but it must be the focus of the Court to look at what proposal best suits the children. No suggestion was made that the husband’s proposal was impracticable. It was certainly submitted that it was inconvenient but that is not the test. It was not submitted that there was no power to vary the earlier orders. It is difficult for me to imagine how a 20 minute drive creates a problem for a child because the travel is not onerous and the child should be in the company of a parent who is encouraging the ongoing relationship with the other.

18. Section 60CA requires the Court when making a parenting order to consider the child’s interests as the paramount consideration. That must mean that it is not the only consideration. If the parent’s convenience is at odds with the best interests of a child, the parent’s interests must give way.

19. When determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC. Neither counsel was able to point to any specific factor that would guide my determination. Both parents have the interests of the children at heart and seem to have a good relationship with the children. The problem is their relationship. Neither parent led any evidence about parenting relationship, capacity or responsibility. It was not suggested that there was a risk of exposure to abuse or family violence nor would I expect it to be from two parents who love their children.

20. When ultimately the matter is heard by the Court, the parents will need to be conscious of the requirement in s 60CC that the Court consider how each of them has facilitated and taken up opportunities to foster and maintain parent and child relationships. In making an order such as this, the best assistance I can obtain comes from s 60B of the Act is respect of the objects and principles which are designed to guide the Court’s considerations when determining the best interests issues. Those include amongst several things, ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children. Ensuring children understand that their respective parents are respected by the other and an important part of their lives is an important aspect of that. The objects and principles also include the parents jointly sharing duties and responsibilities concerning the care, welfare and development of their children. In my view, that includes travel. Importantly, parents should agree about the future parenting of their children. That too requires the parents to ensure that they work out equitably the arrangements so that they can be implemented with a minimum of fuss for their children.

21. I must find that whatever had been the arrangement, the wife’s stance had been determined on her convenience. That is not a good start.

22. In my view, it is appropriate that they work to share the travel and as such, the husband’s proposal altered by a half hour, best suits the interests of the children.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 December 2012.

Associate: 

Date:  10 December 2012