George and Perkins

[2015] FamCA 1204

FAMILY COURT OF AUSTRALIA

GEORGE & PERKINS [2015] FamCA 1204

FAMILY LAW – CHILDREN – Interim Proceedings - Application by mother seeking a variation of the time that the children spend with their father in the United Kingdom for Christmas 2015  - Application granted  

FAMILY LAW – CHILDREN – Application by mother to vary final orders in respect of the time that the children spend with their father - Application listed for hearing on a fixed date

Family Law Act 1975 (Cth)

APPLICANT: Ms George

RESPONDENT: Mr Perkins

FILE NUMBER: HBC 414 of 2011

DATE DELIVERED: 10 December 2015

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 10 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Turnbull

SOLICITOR FOR THE APPLICANT: Ogilvie Jennings

COUNSEL FOR THE RESPONDENT: Ms Rofe

SOLICITOR FOR THE RESPONDENT: Wallace Wilkinson & Webster

Orders

UNTIL FURTHER ORDER«FCA_LD221»

1. Parenting orders made by this court on 27 April 2012 be varied to suspend the requirement for the mother and the children to travel to the United Kingdom in December 2015 and January 2016 AND IT IS DIRECTED the children shall travel to England, with the mother, to spend time with the father departing Australia on Thursday 7 April 2016 and returning to Australia by Monday 25 April 2016.

2. The orders made by this court on 27 April 2012 be further varied to provide that:

   (a)the children shall spend time with the father from Sunday 26 June 2016 until Thursday 14 July 2016;

   (b)the father shall be at liberty to take the children to and from school during the week commencing 27 June 2016; and

   (c)the children shall return to and live with the mother from Wednesday 6 July 2016 to Friday 15 July 2016 (noting that those are the nights when the hearing will be proceeding).

3. 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

1. The order of 24 April 2012 sets out the directions to the parties in relation to the cost of airfares and the like, as set out in orders 1 and 2 above.

IT IS FURTHER ORDERED

1. The application filed by the mother on 14 October 2015 be listed for hearing before me at 10.00am on 7 July 2016 and 8 July 2016 at Hobart.

IT IS DIRECTED

1. The applicant mother pays the hearing fee on or before 3 June 2016.

2. The parties file and serve on or before 4.00pm 6 April 2016:-

   (a)all affidavit material upon which they seek to rely;

   (b)any statements of financial circumstances including details of child support obligations and any applications to vary or depart from any administrative assessment.

IT IS REQUESTED

1. A short family report be prepared in relation to the children S born … 2008 and G born … 2010 (‘the children’) in relation to:-

   (a)their views as to time to be spent with each parent in both Australia and the United Kingdom;

   (b)the best method of electronic communication; and

   (c)the relationship and the way to develop the relationship between the children, their siblings and their respective parents.

   and IT IS FURTHER REQUESTED the interviews for this report take place after 26 April 2016 and the father be given leave to participate in report interviews by telephone, Skype or electronic link from the United Kingdom.

IT IS NOTED

1. (a)     the issue is in relation to what arrangements best meet the needs of the children in respect of travelling to and from the United Kingdom and the father travelling to and from the United Kingdom;

   (b)that consideration in terms of the economic circumstances of both parties;

   (c)the need and mode of electronic communication;

   (d)the underlying failure of communication or aggressive or unresponsive communication as between the parties; and

   (e)the parties will address the issues so that a prohibition departure order is not made to prevent the father from leaving Australia at the conclusion of his time with the children in July 2016.

IT IS FURTHER ORDERED

1. Costs of both parties be reserved.

2. Leave be given to the parties to have the matter restored before me on the giving of seven (7) days notice to the court and to the other party.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym George & Perkins 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 HOBART

FILE NUMBER: HBC 414 of 2011

Ms George

Applicant

And

Mr Perkins

Respondent

REASONS FOR JUDGMENT

1. Just so the parties understand, part of my reasoning will be in relation to the exchange between myself, counsel and, at some times, dare I say, the parties during the course of today.  I am concerned, given the comments I made in my reasons when the orders were made in April 2012, that these children continue to have a relationship with both of their parents.

2. It seems important to me, now that three new children have been added to the mixture, that the subject children have a relationship with their siblings in a sensible way so that it does not impoverish one or other of the parties.  It is also important that the communication at a deeper level between the parties is somehow re-established and it is not left in the difficult circumstances about which I have read in the affidavits, albeit that evidence untested to date. 

3. In relation to the Christmas time, it would have imposed a terrible burden upon the mother with her seven-month-old baby to travel overseas.  The logic of delaying that travel even for a few months is that it will make life so much easier for her and consequently for the children, who would observe the impact on their mother.  At the same time it is important that the subject children have a relationship with their father, hence the April time. 

4. In terms of the time in July, it is structured in this way: firstly, that it will allow the father to spend time taking the children to and from school for the last week of term and will also make it easier for them in that some normality will occur in terms of them going to school in the morning and finishing school in the afternoon.  I had not taken the time through to 19 July as I was conscious that the children will be under some pressure in both households, as there will be litigation going on between their parents over that particular period of time.  If they return to their normal household on 15 July, which is the Friday, it will give them three full days before they return to school.  This will give them an opportunity to calm down and settle down and be ready to go back into the school for the beginning of term 3. 

5. For what it is worth, I urge these parties to start mediating and communicating to find some solution.  The communication between them is not good.  I suspect these children really do not care that much for the type of communication of their parents.  From what I can recall and have read on the first occasion, they deeply love both of their parents and just simply want an arrangement so they can move easily between one or other without too much of a burden being thrown on them. 

6. If need be, those reasons can be briefly published.  Otherwise they can simply be considered by the parties.  I give leave for the matter to be restored before me on seven days’ notice by either party.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 10 December 2015.

Associate:     

Date:              10 December 2015