Geary and Maddigan

[2015] FamCA 1205

FAMILY COURT OF AUSTRALIA

GEARY & MADDIGAN [2015] FamCA 1205

FAMILY LAW – PARENTING – Interim orders – where orders were made for the children to spend holiday and weekend time with their father pending the final hearing of the matter.

APPLICANT: Mr Geary

RESPONDENT:	Ms Maddigan
INDEPENDENT CHILDREN’S LAWYER:	Ms Burgess

FILE NUMBER: CAC 2054 of 2010

DATE DELIVERED: 9 December 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 9 December 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Mr Ridge
SOLICITOR FOR THE RESPONDENT:	Ms Jude

Orders

IT IS ORDERED BY CONSENT, UNTIL FURTHER ORDER, THAT:
In relation to the children B, born … 2004, C, born … 2006, and D, born … 2009:

1. On any day that the children are due to come into care of the father, the mother asserts that any child is too unwell to attend school, the mother shall notify the father by 8:00am on that day and the child shall come into the care of the father at the commencement of the school day.

2. Without admission neither parent shall permit any of the children to travel in any motor vehicle unless restrained according to law. 

3. Without admission neither parent shall permit any of the children to consume any nuts or food containing nut products.

4. Without admission both parents shall provide the child C with a gluten free diet. 

5. Without admission neither party shall use physical discipline towards the children.

6. Without admission both parents shall have in their possession at all times the children are in their care epipens that have not passed their use by date and which are appropriate for each child.

IT IS ORDERED, NOT BY CONSENT, THAT:

1. The orders made on 13 May 2015 about the father’s time with the children are suspended during the Christmas school holidays and that the father spend time with the children during the school holiday period as follows:

   a.       From 9am on 26 December 2015 until 9am on 16 January 2016.

   b.      Otherwise the children will spend the Christmas school holidays with their mother. 

   c.       It is noted in this regard that these arrangements will enable the mother to spend both Christmas Eve and Christmas Day with the children on this year and although these are interim Orders it is expected that the father would have the children for these days in 2016. 

2. a.     Until the Christmas school holidays in 2015 the children will spend from 3pm on Friday 11 December 2015 until 9am on 14 December 2015 with their father. 

   b.     The father will be responsible for the collection of the children from the school on 11 December 2015 and the return of the children to the school on 14 December 2015. 

3. When school recommences in 2016 the children will spend each alternate weekend with their father from 3pm on the Friday until 9am on the following Monday, such weekends to commence on the first weekend after the day on which the children recommence school for the year 2016. 

10.  Unless the Court should make a further order before these orders might come into effect, the children will spend the first week of each of the term school holidays with their father commencing on the last day on which all of the children are obliged to attend school at 3pm and to be returned in accordance with the Order set out hereafter.

Handovers other than at school

11.  If a handover of children is to occur otherwise than at the school in accordance with these Orders it will occur in the lobby of the E Hotel in proximity to the CCTV camera thereabouts. 

12.  For the sake of certainty I dismiss the father’s application in respect of Orders sought 2 about the mother’s attending the children’s school.

IT IS NOTED that publication of this judgment by this Court under the pseudonym G Geary & Maddigan 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 CANBERRA

FILE NUMBER:  CAC 2054 of 2010

Mr Geary

Applicant

And

Ms Maddigan

Respondent

REASONS FOR JUDGMENT

1. The proceedings before me today relate principally to the issue of what is to happen about arrangements regarding the time the children might spend with their father pending the hearing which is scheduled for April of 2016.  There are certain matters between the parties which were agreed, and certain that were not.  Among those that are agreed – and I make orders by consent – are the following orders.

2. The matters that were in dispute fall into a number of different categories, and I will deal with them briefly in this matter.  I am obliged, in any event, as parenting orders to be made, to give consideration to the broad propositions and presumptions under the Family Law Act.

3. Because these are interim orders, in my opinion it is inappropriate that the presumption set out in the Act as to joint parenting responsibility should be rebutted, at least in so far as it is necessary for the implementation of these orders and for the effective operation of them into the future until trial.

4. The orders must be made in accordance with what is in the best interests of the child, and the factors that are to be taken into account in determining the best interests of the children are set out in section 60CC of the Family Law Act.

5. In broad terms, the major issues between the parties will be properly dealt with in due course in a formal trial; however, the interim matters relate principally to the period during which the children might be separated from their mother, in effect, and the arrangements for weekend contact and whether or not C should be part of the arrangements with the other children.

6. The bones of contention between the parents are, on the father’s part, that during the coming school holidays he seeks that the children spend three weeks with him on the basis that this will provide an opportunity for the children to have a settled time and will also enable him and the mother, if she wanted it, to have a holiday with the children during the relevant period;  the mother, on the other hand, seeks that the arrangement which would not exceed one week of time be spent on perhaps a week and week about basis .  This, she says, will enable the setting of a proper basis for continued arrangements for the future.

7. The parties are in dispute about what is to happen on Christmas Day.  The parties are in dispute about when the weekend arrangement should recommence in the new year; whether it should be at the end of the first or the second week of the school term;  and the parties are in dispute, in part, though not much, about the holiday time that the children will spend with their father during 2016, at least until trial or until judgment is delivered in the trial.

8. There is also an issue, which was not much dealt with in the course of submissions, about the mother’s attendance upon the school and the father seeking injunctions in relation thereto. I will deal with those issues and in the process I will incorporate the matters that I am obliged to take into account under section 60CC.

9. Starting first with the arrangements that are to occur until the school holidays commence, there is only one logical weekend between now and Christmas, and that is this coming weekend.

10. I should point out that it is inherent in these orders that it is my view that all three children should be the subject of these orders at this point.  I am not in a position to evaluate the evidence sufficiently to enable me to differentiate on an interim basis between the arguments advanced on behalf of the mother and those on behalf of the father about the efficacy for such arrangements in respect of C.  At this point it seems to me that there is a small window of opportunity for the father to demonstrate a level of responsibility which in the past may not have been as apparent as it presently is or presently he asserts it is.  And for that reason it seems more likely than not that C may have a good time with his father.

11. So far as the arrangements for Christmas are concerned, I have listened to the arguments on both sides.  There is very little to choose between them.  I note that the Independent Children’s Lawyer supports the proposition – or at least, does not oppose the proposition – that the children should spend three weeks of the school holidays with their father.  This issue ties in in part with the issue of Christmas Day, and I accept that the mother did not have Christmas Eve or Christmas Day with the children last year, at least until 1 o’clock in the afternoon.  In my opinion, and I accept the recommendation of the Independent Children’s Lawyer in this regard, rather than have conflict on Christmas Day, these parents unfortunately – and unfortunately for the children – will need to spend each alternate Christmas with the children.  This Christmas the children will be with their mother and they will go to their father on Boxing Day.

12. I note, in this regard, the arrangements will enable the mother to spend both Christmas Eve and Christmas Day with the children in this year, and although these are interim orders it is expected that the father would have the children for these days;  that is, Christmas Eve and Christmas Day in 2016.

13. When school recommences in 2016 – I got lost in the arguments, to some extent, about what was the significance of which week was which;  however, on the assumption that the father is spending the first week of the school holidays with the children, then the children spend the second week of the school holidays with the mother – which gives her time, if she needs to, to settle the children down before they return to school, in which case the children should resume their weekend time with their father on the weekend immediately following any day on which the children are obliged to attend school.

14. And for the sake of certainty, I formally dismiss the father’s application in respect of the second order he sought enjoining the mother from attending the children’s school.  The reason for the latter is that I am far from convinced that the mother’s attendance is a disruptive force.  I am not convinced that the father’s motivation in relation to this matter arises from his concern about the best interests of the children.  I am satisfied on an interim basis that the mother has sought to attend functions, which are appropriate for her to attend at school.  There is no reason shown on the evidence before me to justify the injunction sought.

15. So far as the handover place is concerned, I am unimpressed by the argument about an insufficient number of pixels in the CCTV cameras in the E Hotel.  It seems to me that the existing order which mandates that as the appropriate handover place should continue.  I am also conscious of the fact that, at least for some of the periods referred to, it may be that the F Club is not open at the relevant time, particularly on Christmas Day.

16. That deals with the issues that were raised.  I am concerned the parties have not pursued, as they might have if they were operating efficiently, the arrangements about obtaining appropriate counselling and professional interventions.  It is a matter for the parties, I suppose, but if I were hearing the trial in April and I found that the recommendations had not been implemented, I would certainly take a particular view about the parent that was so involved.  Matter, I suppose, for the parents as to whether they think it is worthwhile pursuing something in the interests of the children.

17. I will issue a separate order which sets out the directions that I have discussed with you earlier today about the time for the trial, which will be commencing, I think, on the 6, 7 and 8 April 2016 before Austin J and I will give a direction that all affidavit material and minute of orders sought will be filed by 29 January 2016 by 4 pm, and the directions I make are subject to any other directions that may be given by his Honour.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 9 December 2015.

Associate:

Date:  8 February 2016