Harris and Sloane

[2008] FamCA 63

FAMILY COURT OF AUSTRALIA

HARRIS & SLOANE [2008] FamCA 63

FAMILY LAW – CHILDREN – With whom a child spends time – Which party is to pay professional fees

Family Law Act1975 (Cth)

APPLICANT: MR HARRIS

RESPONDENT: MS SLOANE

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 6081 of 2003

DATE DELIVERED: 5 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr M.G. Hebblewhite

SOLICITOR FOR THE RESPONDENT: Marshalls & Dent

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr R.N. Hoult

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Bowlen Dunstan & Assoc Pty

ORDERS:

BY CONSENT IT IS ORDERED OTHER THAN WHERE THE WORDS IN THE FOLLOWING ORDERS ARE UNDERLINED WHICH ARE ORDERS OF THE COURT

1. That all previous order be discharged.

2. That the child … born … July 1999 (“[the child]”) live with the wife.

3. That the husband and wife have equal shared parental responsibility for the long term care, welfare and development of the child.

4. That the husband and wife have sole responsibility for the day to day care, welfare and development of the child whilst in their respective care.

5. That the husband spend time and communicate with the child as follows:

   (a)each alternate weekend from immediately after school concludes on a Friday at 3.30pm (or Thursday in the event that the Friday is a public holiday) until immediately before school commences on Monday (or Tuesday, if Monday is a public holiday);

   (b)for a period of four days in the Term 2 and Term 3 school holidays in 2008, such days not to be added to any weekend time under these orders;

   (c)for the long summer holidays in 2008/2009, for two periods of four days to be selected by the husband but not to include:

   i.the period between 24 December and 26 December;

   ii.any weekends nor to be added to his weekends under paragraph 5(a) hereof;

   iii.and not to be consecutive with each other.

   (d)from the school term holidays commencing at the end of Term 1 in 2009:

   i.for one half of all school term holidays; and

   ii.one half of all long summer holidays.

   by agreement and in default of agreement, the husband have the first half in all even-numbered years and the second half in all odd-numbered years.  For the purposes of this order, the first half of all holidays shall commence at the moment that school breaks up and the second half shall commence at 12 noon on the day half way between the commencement and conclusion of the holidays.

If the husband is unable to have the allotted time pursuant to these orders for school holiday periods, he shall give
the wife one month written notice of his intention to not so take the time with the child.

(e)In the event that Father’s Day falls on a weekend when the child would not be with the husband, the husband shall have the child that weekend, in accordance with paragraph 5(a) in lieu of the following weekend.

(f)In the event that Mother’s Day falls on a weekend when the child would be with the husband, the child shall not spend time with the husband that weekend and the husband shall have the child the immediate following weekend, in accordance with 5(a).

(g)From 5.00pm Christmas Eve 2010 until 5.00pm Christmas Day 2010 and each alternate year thereafter.

(h)From 5.00pm Christmas Day 2009 until 5.00pm Boxing Day 2009 and each alternate year thereafter.

(i)The husband spend time and communicate with the child on the child’s birthday as follows;

i.if it falls on a school day from after school until 6.00pm;

ii.if it falls on a non-school day from 11.00am until 5.00pm;

iii.if the child is with the father on his birthday pursuant to Order 5 the child shall spend time with the wife in accordance with paragraphs (a) and (b).

(j)Otherwise as agreed.

1. The wife be permitted to telephone the child whilst the child is with the husband, once each day before 6.00pm, during weekend time, and once each second day, during holiday time between the child and the father.

2. That the husband be permitted to telephone the child whilst the child is with the wife, at all times reasonable but no more than once each day before 6.00pm.

3. For the purposes of alternate weekend time:

   (a)the child shall be collected or returned to school by the husband, Mrs Harris, or the paternal grandmother;

   (b)if the father, Mrs Harris or the paternal grandmother are not able to collect the child from school, the husband shall provide the wife with forty-eight (48) hours notice, in writing, by email or SMS text, and the child shall then be collected from the S Café at such time as may be agreed;

   (c)the husband, or his nominee, shall not place the child in after school care or before school care;

   (d)in the event of an emergency and the husband or Mrs Harris or the paternal grandmother are unable to attend school by 3.30pm, the husband shall immediately notify the wife or immediately request Mrs Harris or the paternal grandmother, to notify the wife and the child shall be collected in accordance with 7(b).

4. For the purposes of changeover, other than when it occurs at school, the wife deliver the child to the husband’s residence at the commencement of the period and the husband, Mrs Harris or the paternal grandmother shall return the child to the S Café at the conclusion of the relevant period.

5. That the husband be in substantial attendance during all periods pursuant to these orders.

6. The parties to keep each other advised of:

   (a)email addresses, residential addresses and telephone details;

   (b)any medical or dental appointment concerning the child;

   (c)any diagnosis or prescribed treatment or medication for the child;

   (d)any serious, medical, health, education or emotional issue concerning the child as soon as practicable.

7. The parties and their servants and agents be restrained from denigrating the other in the presence of the child.

8. That the husband shall attend upon Professor T (or nominee as recommended by Professor T) and shall do all acts and things to ensure that his wife, Mrs Harris, attend if requested.

9. The husband shall comply with all reasonable recommendations made by Professor T (or nominee), as to treatment, therapy or management of the child’s health.

10. The wife shall attend upon Professor T (or his nominee) as recommended by Professor T and shall comply with all reasonable recommendations made by Professor T as to treatment, therapy or management of the child’s health.

11. To the extent at there are any costs associated with the treatment, therapy or management of the child’s health, the costs shall be shared equally between the parties as recommended by Professor T (or his nominee) and as agreed by the parties.

12. That the appointment of an Independent Children’s Lawyer be discharged.

13. That all extant applications be dismissed.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

2. 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.

3. That neither party encourage the child to telephone the other parent after 6.00pm on any day whilst the child is in their care.

1. That each of the husband and the wife pay to Dr H the sum of $680 towards his expenses for attending court on 4 February 2008.

NOTATION
In respect of the parts of these orders that are underlined, the parties agreed for extempore determination of those issues and requested that no reasons for judgment be given.
AND IT IS NOTED

1.Both parties acknowledge that the child suffers from Aspergers Syndrome.

2.The wife intends to take the child to Queensland in the first term school holidays in 2008, and to the extent that the father misses a weekend with the child, the father shall have a make up weekend, or the first non “contact” weekend following the child’s return.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6801 of 2003

MR HARRIS

Applicant

And

MS SLOANE

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These are proceedings in relation to parenting matters that have been done in a somewhat unorthodox way, and arising out of the orders that I have just made, an application for contribution towards the costs of the single expert witness has been raised.  The order of Registrar Sikiotis was that the report be prepared by the single expert witness and the costs were to be covered as to three‑quarters by the husband and one quarter by the wife.  There was no provision in the order for the payment of the fees for the attendance of Dr H at the court.  All parties requested that he attend for the purposes of cross‑examination and as luck had it, he was not required.  That does not obviate the fact that he needs to have his costs covered and I see no reason why they should be covered by the Victoria Legal Aid because the money would then be coming out of the community's purse.

2. The normal way in which the rules determine this issue is that each party pay one half, and that having been made clear in the rules it is an unusual situation to depart from it.  The way in which the court would normally determine a departure from that rule would be for the same examination as would be undertaken for the purposes of a costs application under section 117.  The income of the parties is limited on both sides.  When one adds into the wife's income of $25,000 the sum she receives in child support and then deducts from the husband's income the child support he pays, there is not a significant difference between their immediate available funds, notwithstanding that in the wife's household obviously she has to support the child.

3. In my view this is a case where I ought not depart from the rules and I order that each party contribute one half towards the Dr H expenses.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  13 February 2008