HARPER & GRANT

[2010] FamCA 1019

FAMILY COURT OF AUSTRALIA

HARPER & GRANT [2010] FamCA 1019

FAMILY LAW – CHILDREN – Parenting and time spent – Interim orders

APPLICANT:    MR HARPER

RESPONDENT:    MS GRANT

FILE NUMBER:    MLC 5689 of 2009

DATE DELIVERED:    8 NOVEMBER 2010

PLACE DELIVERED:    MELBOURNE

PLACE HEARD:    MELBOURNE

JUDGMENT OF:    YOUNG J

HEARING DATE:    8 NOVEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT until further order the child of the marriage G born … May 2001 live with her mother.

2. THAT in addition to the time provided to the father pursuant to the Orders made by consent on 6 August 2010 he spend further time with the child on each alternate Wednesday from after school until the commencement of school the following Thursday morning commencing Wednesday 17 November 2010 and each alternate Wednesday thereafter (save that all such Wednesdays are suspended during school holiday periods).

3. THAT for the upcoming December / January school holiday period the parties are to have equal time with the child and such division of time include:

   (a)the father spend time between 29 December 2010 and 8 January 2011 in Melbourne or interstate as he be able to financially afford and properly accommodate his daughter;  and

   (b)with the mother between 8 January 2011 (4.00 p.m.) and 23 January 2011 (inclusive).

4. THAT if either parent removes the child from Melbourne they are to notify the other of the address at which she will be living and provide a telephone number and current e-mail address at which the other parent can be contacted in the event of any serious situation arising.

5. THAT paragraph 11 of the Orders pronounced by Dessau J on 7 August 2009 be discharged.

6. THAT otherwise the various injunctions pronounced by Dessau J on 7 August 2009 continue in full force and effect.

7. THAT no adult, including the parents, are to discuss any aspect of this court proceeding with the child or show her any document from the court proceeding or read any such document to her.

8. THAT the father is not to video the child at school or in the surrounds of her school.

9. THAT the parents are to co-operate with each other and provide sufficient clean clothing for their daughter on all changeover periods and ensure that the child does not have such additional clothing with her during her school time.

10. THAT otherwise the parties are to confer with the Family Consultant, Mr E on 21 February 2011 at 9.15 a.m. for the purposes of an updated Family Report being prepared pursuant to section 62G of the Family Law Act 1975.

11. THAT such further Family Report be available to the parties and the court on or before Friday 8 April 2011.

12. THAT the order requiring changeover to occur at the McDonald’s Restaurant, N, be discharged and the parties are to work all changeover arrangements between themselves by agreement, including for the mother or her new husband to be able to collect the child from the father’s residence at appropriate times.

13. THAT all extant applications be otherwise adjourned for a one (1) day hearing before Young J (and not on a part heard basis) on Monday 18 April 2011 at 10.00 a.m.

14. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties and the Family Consultant.

IT IS NOTED

A.THAT the father does not have a motor vehicle.  The father is actively looking for employment and both of these matters will be further considered in the context of additional time to be spent by him with the child on the adjourned hearing date.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 5689 of 2009

MR HARPER

Applicant

And

MS GRANT

Respondent

REASONS FOR JUDGMENT

1. The matter of Harper and Grant is listed before me as a first day hearing.  The parties each appear in person and Mr E, Family Consultant, has been in Court and has assisted with his earlier prepared children and parent assessment issue document dated 29 September 2010.  This matter is not part heard before me.  I intend to make certain orders today by way of a modification of the previous orders made 6 August 2010 by Registrar Marrone and the earlier orders of Dessau J made 7 August 2009.

2. The child of the proceedings is the daughter G, born in May 2001 and now nine years of age.  The child predominantly lives with her mother and her new husband and their new daughter, M, two years of age.  The husband has now returned to Australia from his work in Europe.  The mother and daughter and her new husband had earlier returned to Australia in or about September of 2007.

3. The issues before me involve the parental sharing of time to the child, and predominately the father seeks a greater period of time with his daughter – indeed, up to an equal sharing of time.  The wife and her new husband both have full-time employment, and they work for the same organisation on a roster basis so that one of them is always available for the two children who live in their household.  The father is a highly qualified scientist who has a Doctorate Degree and recently has finished his work in Europe.  He has been in Australia since mid-year and is yet to obtain employment.  He is looking now for any sort of employment to earn income and will be doing further training in the computer and IT field, looking for skills-based employment.  He has volunteered to the Court that he will live anywhere within Victoria where his suitable employment – where suitable employment may be found.  That in itself is a matter of real importance, because the proximity of where he lives to where the child’s primary schooling and place of abode is from time to time are matters of real importance that most certainly touch upon the regularity of time spent.

4. Pursuant to the current orders, which were made by consent in August of this year, the father has each alternate weekend from after school Friday until 4.00 p.m. Sunday with his daughter.  Orders have been made for a sharing of Christmas Eve and Christmas Day this year, and otherwise the parties are to have one half of school holidays, and in default of any agreement, the father is to have the second half. 

5. The orders for changeover at McDonald’s Family Restaurant, N, has been suspended by the actions of the parties.  The father predominantly collects the child from school, and the mother or her new husband drive over to the father’s nearby home and collect the child at the conclusion of the time spent period.  That most certainly is a better arrangement for the child than spending time at a McDonald’s restaurant.  There were various notations made to the past Court orders as to the possibility of the husband returning overseas, but those matters have not eventuated, and the father has assured the Court this day that he intends to remain permanently living and working in Australia.  He has his Australian citizenship.  He does not own a car but has advised the Court that he has a valid drivers licence. 

6. I have perused the Court file and there have been various orders made from time to time, including more substantial orders made by Dessau J on 7 August 2009.  Those orders were also by consent, but I highlight that there were various injunctions made to that day, and all of those injunctive orders continue, and in particular, paragraphs 7, 8, 9, and 10 thereof.  Paragraph 11 is of some importance, because at that time it was ordered that the husband not spend overnight time with the child outside the Melbourne metropolitan area or away from his sister’s residence without first obtaining the consent of the wife, which consent the wife was not permitted to unreasonably withhold.  I mention that matter because it is a matter before me that the husband wants to – the father wants to spend some time with his sister, who now lives in Sydney, and I will facilitate that this year and during school holidays and when, in any event, it was his time, he may have a period from 29 December of this year until 8 January of next year (inclusive) with the child interstate, provided at all times  he gives to the mother the address of where he will be staying, the phone number that he can be contacted on, and she has some certainty as to the child’s whereabouts and well-being. 

7. Likewise, I will afford the mother an opportunity to have an interstate holiday with both of her children and her new husband, and between the afternoon of 8 January of next year and 23 January next year, that is, a period of some 15 days, she will exclusively have the child with her, and any period that the father would have had in that time is suspended.  Otherwise, the balance of the December/January school holiday period will be shared in such a way as to afford equality of the sharing of time over that whole holiday period.  I leave that to the parties to organise, but the reality of that means that the father will spend some time with the child in December leading up to Christmas and after her breakup from school, but the parents will have to fine-tune that time.

8. It is important to understand that both parents now live in N, albeit some little distance from each other.  The fact that they live within the same suburb affords a level of opportunity for changeover of their daughter. 

9. Mr E is going to prepare an updated report, and he will confer with the parties and the child at a time to be fixed in mid to late February of next year.  Tentatively that date is 21 February at 9.15 a.m., but he will better notify the parties in writing of that timetable.  I will have the matter listed before me on 18 April for one day only next year at 10.00 a.m. 

10. I am asked to vary the existing orders in terms of the father’s time with the child.  The recommendation of Mr E is clear that some little further time would be appropriate.  I have carefully read the summary of his report and all of his observations of the child.  It is important to understand that to facilitate the mother’s overseas holiday last year, the father did spend time with the child, up to five weeks, and that provides a foundation for ongoing time to be spent.  I will, however, be moderate in what I order, and it will only be each second Wednesday from after school until return to school Thursday morning.  The father will need arrangements to have the child at school on time on that Thursday morning.  Perhaps that can done with some level of discussion with the mother or her new husband, because I do not necessarily want the child on a bus for up to 45 minutes before school.  So some common sense need apply. 

11. In respect of all periods that the father has with the child, there needs to be proper clothing provided, and the onus is upon both parents to ensure that the child is never embarrassed before her classmates and that she has proper, clean clothing for all occasions.

12. I am told that there are orders made in Europe dealing with custody or residence issues, but none of those orders are seemingly on the Court file, or if they are, I cannot locate them.  I see no order made by this Court, on an interim basis, providing for the child to live with the mother.  I do not prejudge any issue, but I intend to make an interim order today subject to the further hearing to provide some certainty to the child in that regard.  That does no more than confirm the current arrangement and the basis upon which the father’s orders to spend time with the child are made. 

13. I highlight to the parties and for future Court reference that there remains a current binding Airport Watch List, so the child cannot be removed from the country without Court order.  That was obtained by the father.  I will not vary that order today, but it is a matter that the mother should bring up on the next hearing date.  It certainly does prevent the child leaving the country or having any overseas holiday anywhere.

14. I will not make orders for the filing of further affidavits in an effort to minimise cost.  There will be a more substantial report from Mr E before the Court on the next occasion.  It is to be hoped that the parties do talk and have some level of relationship counselling.  The mother has indicated she has used her best endeavours to attend at the Sunshine Offices, as recommended by Mr E, but the father seemingly has not attended.  He should, and I will inquire next hearing as to whether he has made some efforts in that regard.  Clearly it’s in his – it is in his best interests and of the child so to do. 

15. I have prepared that very brief ex tempore reasons for judgment, an explanation of what I am going to do so that the parties can read that document at their leisure.  It will be transcribed, placed upon the Court file, and made available to the family consultant, to the parties, and, of course, to the Court.  I emphasise it is very preliminary and does not conclude any final views of the Court. 

I certify that the preceding fifteen
(15) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 8 November 2010.

Associate: ……………………………………………………………

Date:  …………………………………………………………………