Gerces and Kirkpatrick

[2008] FamCA 916

FAMILY COURT OF AUSTRALIA

GERCES & KIRKPATRICK [2008] FamCA 916

FAMILY LAW – CHILDREN – with whom a child lives – mother seeks variation of nights enabling child to spend mother’s birthday with her – father declined proposal – Orders made acceding to those sought by mother

APPLICANT: Ms Gerces

RESPONDENT: Mr Kirkpatrick

FILE NUMBER: BRC 7282 of 2007

DATE DELIVERED: 17 June 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 17 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Harris of Counsel appearing for the Applicant Mother

SOLICITOR FOR THE APPLICANT: Doyle Keyworth & Harris

SOLICITOR FOR THE RESPONDENT: Mr Carroll, Solicitor of Frank Carroll Solicitor, appearing for the Respondent Father

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Khushal, Solicitor appearing as town agent for the Independent Children’s Lawyer

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Mother spend time with the child, … born … March 2005, from 9.00 am Friday to 4.00 pm Monday.

2. These Orders authorise the ABC Learning Centre to provide information about the child’s progress or learning centre activities directly to the Mother.

3. The Mother have telephone time with the child between 6.00 pm and 6.30 pm each Wednesday.

4. The Father have telephone time with the child between 6.00 pm and 6.30 pm each Sunday.

5. The Mother spend time with the child from 9.00 am to 5.00 pm on … June 2008, with changeover at the ABC Learning Centre.

6. Order 5 of the Orders of this Honourable Court dated 28 March 2008 be discharged.

7. Order 1 of the Orders of Federal Magistrate Jarrett dated 3 May 2007 be discharged.

IT IS ORDERED:

1. The proceedings be adjourned for case management review to 10.00 am on
   30 July 2008.

2. The proceedings be set down for trial for three days commencing 10.00 am on 25 August 2008.

3. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS ORDERED BY CONSENT THAT:

1. All parties to issue subpoena by 11 July 2008 which are to be returnable by 25 July 2008.

2. All parties to file and serve any amended application and amended response and material to be relied on at trial by 4.00 pm on 11 July 2008.

3. All parties to file their Case Outlines, orders they are seeking including orders in the alternative and list of documents including subpoenaed material to be relied on at trial by 4.00 pm on 25 July 2008.

4. The Family Consultant, Ms B to prepare another family report to be     distributed to

   all parties by no later than 1 August 2008.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7282 of 2007

MS GERCES

Applicant

And

MR KIRKPATRICK

Respondent

REASONS FOR JUDGMENT

1. The child, the subject of this dispute, was born in March 2005, currently 3 years of age.

2. The litigation process commenced almost two years ago.  The matter was referred to this Court from the Federal Magistrates Court.  It was listed in the less adversarial trial process and came before me on 28 March.  At that time, various orders were made which amended the operative orders made by Jarrett FM back on 3 May last year.

3. The mother seeks a further variation on today's date.  Up until the present time, as I understand it, she has been having five nights out of 14 with the child, Saturday and Sunday nights in one week; Friday, Saturday and Sunday nights in the alternate week.  She now seeks that, for all purposes, it be the same in each week and that her time with the child commence 9.00 am Friday through until 4.00 pm Monday.  That effectively gives her four days of each week, but a total of six nights out of 14.

4. The less adversarial trial process appears to have been a resounding failure in this instance.  The parties are precluded from filing material.  When this was on, I wanted to see the only report that was extant since the proceedings came into this Court and that was the report of Ms B and that was prepared on 25 March 2007.

   RECORDED  :  NOT TRANSCRIBED

5. What I have done is delved into previous reports.  I have noted that there were reports from Dr M, a psychiatrist.  In the time available, she was not able to make any definitive observations or diagnoses.  There was a report from Mr D in November 2006.  I note that in paragraph 33 of that report he records the father as saying to the report writer that he knew:

   “[The child] was very attached to his mother.”

6. Mr D at paragraph 84 observes:

   “From my observations I conclude that [the child’s] primary attachment is with his mother and the current arrangements, especially in the context that [the child] is not even being cared for by his father but rather is in a child care centre for the Monday and Tuesday that he is living with his father, do not seem to provide the stability that is important at this stage of the child's emotional development.  [The mother] plans to care for the child for the full time he is with her.” 

7. I note that in Ms B’s report of March, the final paragraph on page 3 under the heading "Summary" she said:

   “Each parent is seeking primary care of [the child] and appears unlikely to resolve this issue without a determination by the Court.”

8. Well I can say the parties have got a long way to go where the mother asks for the child to be with her for one day, for her birthday, and notwithstanding the comments that have been made to Mr D, that proposal is declined.

   ORDER DELIVERED

9. I think it reflects badly on the father that he would take such a mean spirited attitude to this.

   RECORDED  :  NOT TRANSCRIBED

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  17 June 2008