Gareth and Naylor

FAMILY COURT OF AUSTRALIA

GARETH & NAYLOR

[2018] FamCA 380

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth) Section 60CC

APPLICANT:

Mr Gareth

RESPONDENT:

Ms Naylor

FILE NUMBER:

CAC

1355

2017

DATE DELIVERED:

30 May 2018

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

21 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jackson

SOLICITOR FOR THE APPLICANT:

Eden Legal & Conveyancing

SOLICITOR FOR THE RESPONDENT:

Legal Aid, ACT

Orders

That the mother keep the father informed of the particulars (including name, address and telephone number) of B’s (the child):
(a)Residential address (unless the child is residing in a refuge or safe home facilitated by a refuge);
(b)Doctor and other treating health professionals;
(c)Swimming class location and provider; and
(d)Daycare centre in the event that the mother enrols the child in a daycare centre other than the one in which she is presently enrolled.
That the mother provide progress reports from the child's current daycare centre to the father with relevant identifying information about the centre's name, address and contact number redacted.
That the mother forthwith ensure that the father's name and contact particulars are recorded with the child's:
(a)Doctor and other treating health professionals;
(b)Daycare centre; and
(c)Swimming class provided (if applicable).
That in the event that the child becomes highly distressed or there is an emergency whilst spending overnight time with the father, the father inform the mother of same via telephone and:
(a)Deliver the child to the mother (unless otherwise agreed between the parties) at the Suburb G Railway Station; and
(b)Pay the costs of taxis for the mother to and from the Suburb G Railway Station and her residence.
That in relation to FaceTime, Order l(c) of the Orders dated 14 September 2017 continue.
That when the child is spending overnight time with the father, the father is to make the child available via FaceTime with the mother for a period of no less than 15 minutes on each occasion, at such time as may be agreed between the parties, but failing agreement not more than once each day at a time proposed by the mother to the father not less than 24 hours prior to such proposed FaceTime.
That the father spend time with the child in Canberra as follows:
(a)From 5.30pm or from the conclusion of the Family Report interviews (whichever is earlier) on 31 May 2018 until 10.00am on 1 June 2018;
(b)On 1 June 2018, from 2.00pm to 6.00pm;
(c)On 2 June 2018, from 9.30am to 12.30pm; and
(d)Such further and other times as agreed.
That changeover in relation to the paragraphs 7(a) - (d) shall take place with the father to collect and deliver the child from the foyer of H Hotel, Suburb J.
That the father spend time with the child in Perth as follows:
(a)From 6.00pm 5 July 2018 to 4.00pm 6 July 2018;
(b)From 10.00am to 4.00pm on 7 July 2018; and
(c)Such further and other times as agreed.
That upon the father providing the mother with not less than 14 days' notice, the father spend further time with the child as follows:
(a)From 6.00pm on 2 August 2018 to 6.00pm on 4 August 2018;
(b)From 10.00am to 6.00pm on 5 August 2018;
(c)From 6.00pm on 30 August 2018 to 6.00pm on 2 September 2018;
(d)From 6.00pm on 27 September 2018 to 6.00pm on 30 September 2018; and
(e)From 10.00am to 6.00pm on 1 October 2018 and 2 October 2018.
That upon the father providing the mother with not less than 14 days' notice, from 2 October 2018 onwards, the father spend further time with the child as follows:
(a)For 3 consecutive overnight periods, commencing at 6.00pm on the first day and ending at 6pm on the last day and then from 10.00am to 6.00pm on the two days following the day on which the last overnight period ended.
(b)Such further and other times as agreed.
That changeover in relation to paragraphs 9-11 inclusive occur at Suburb G Railway Station.

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 Gareth & Naylor 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 CANBERRA

FILE NUMBER: CAC 1355 of 2017

Mr Gareth

Applicant

And

Ms Naylor

Respondent

REASONS FOR JUDGMENT

The background to this litigation regarding the parties’ child B (the child), who is now aged about three years old, is that the Mother, on separation in March 2017, unilaterally moved to the UK with the child, before being ordered to return to Australia. They returned in mid-2017. When they returned they returned to Perth in Western Australia, leaving considerable distance between the Mother and the child, and the Father who continued to reside in New South Wales, where the parties had lived prior to her move to the UK. The Father made an application to have the child moved to New South Wales, but this application was refused in October 2017.
The current dispute is as to the arrangement for time with the child pending final trial which is as yet unallocated. In particular, the dispute relates to overnight time although the dispute is not as to whether there will be overnight time but rather when and how much.
The parties both agree that there is little if any evidence going to matters which distinguish between their different positions, as are set out in exhibits C1 and F1.
The first dispute relates to a period in late May 2018 following the family report interviews. The Father seeks to have the child with him for the evening following the report preparation, returning her to her Mother to spend overnight with her Mother, but the following day having the child for an overnight period. The Mother seeks overnight time with the Father immediately following the report interviews, being from 5:30pm or the conclusion of those interviews on 31 May 2018 to 10am the following morning. She also says that the child should spend time with her Father on 1 and 2 June during the day.
In July the Father and Mother both seek that the child have overnight time with the Father on 5 July and a day time period with the Father on 7 July 2018.
At the start of August the Father seeks that the child spend 2 to 5 August with him while the Mother seeks that period be 2 to 4 August and that the child spend day time with him on 5 August. At the end of August the Father seeks 30 August through to 2 September, which is agreed by the Mother. At the end of September he seeks 27 September through to 2 October 2018, while the Mother seeks that he have 27 September through to 30 September along with daytime periods on 1 and 2 October 2018.
After this period of time the Father seeks that he has one week with the child each month, while the Mother seeks overnight periods per fortnight, or whenever the Father is in Perth.
As noted the parties say there is no real evidence to differentiate their positions. The Father, in support of his application, points to it being a progression towards the Mother's final orders that involve him, if she is to relocate to the UK, to have a week period with the child. The Mother points to the Father's rapid progression as being too much.
Given that both parties seek transition to overnight time, it is safe to conclude that a transition to overnight time is appropriate. Presumably it will act in support of the child having the benefits of meaningful relationship with her Father and deriving appropriate emotional support from each of her parents. These appear to be the key s 60CC matters in play in the present interim proceedings.
Determining then, the preferred orders, the Mother’s orders in respect of May allow for the child to have overnight time, but with a reasonably prompt return to her Mother following this first overnight period. She allows for greater time in the following days. This manner of increasing time with shorter periods mimics more closely the times the Father has been spending with the child up until that point. As a slightly slower graduation in time the orders sought by the Mother are preferable as they involve a lesser change for the child.
As noted the parties agree as to the arrangements for July, which would provide for one overnight period with the Father for a longer period of time than allowed for in May, along with the day following that period.
Regarding time at the start of August the Father seeks three nights whereas the Mother seeks that it be a two night period, with a day following, with the child. The Mother's more gradual approach is preferable as it again gives the child less change to adjust to.
The arrangements for the end of August are agreed between the parties as being three nights. This appears, by their agreement, to be an appropriate graduation of time from the previous period the child will have spent with her Father.
In September the Father seeks five nights while the Mother seeks three nights plus two days. What is proposed by the Mother is a less drastic change with less risk of failure. In what even on the Mother’s version is a rapid increase in time for the child, the Father's increase being even more rapid is liable to risk the child failing to cope with the change and so the Mother’s orders should be preferred.
After this the Father seeks week long blocks while the Mother seeks three night blocks, potentially at a higher frequency. However, there can be no confidence the Father will be able to make the higher frequency proposed by the Mother. He seeks seven night blocks which is too steep a transition and again risks failure of the regime.
While, if successful, a move to longer time would have considerable benefits for the child, if the longer period causes the time to fail, by reason of the child not coping with the change, the result undermines the progression toward the longer periods of time.
Rather than either of these proposals it seems appropriate to adopt a repeat of the Mother’s position for the end of September / October period. That is, that the child spends three nights and the following two days with her Father.
This deals with the arrangements pending trial for time for the child with her Father. Naturally the parents will be able to agree on different arrangements should they become appropriate.
I note that the current orders already provide for parental responsibility and also provide for regular face time that appears to be working well between the Father and the child, and appears to be supported well by the Mother.
The Mother also proposes a series of sensible orders for her to provide further information about the child to the Father. Given the constraints that she faces living in refuge provided accommodation, the compromise struck by the orders that she seeks to make are appropriate to keep the Father reasonably appraised of what is going on in the child's life.
The Mother also seeks that she have face time with the child during periods of time that the Father spends with the child. While at one level this may seem to be disruptive, it appears that face time is working well for the child with the Father at present. It may also act to normalise even further the face time experience for the child, and so orders to that effect will be made.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 30 May 2018.

Associate:

Date: 30 May 2018

[2018] FamCA 380

30 May 2018

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Family Law

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