Hunter and Watt

[2008] FamCA 353

FAMILY COURT OF AUSTRALIA

HUNTER & WATT [2008] FamCA 353

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT: Mr Hunter

RESPONDENT: Ms Watt

INDEPENDENT CHILDREN’S LAWYER: Mr Duncombe

FILE NUMBER: PAF 1476 of 2006

DATE DELIVERED: 24 April 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: STEVENSON J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Lowe

SOLICITOR FOR THE RESPONDENT: Harrods & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Clarke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dignan & Hanrahan

Orders

I make the following orders:

1. That all existing parenting orders in relation to the child … born … June 2004 (“the child”) be discharged.

2. That the mother have sole parental responsibility for the child.

3. That the child live with the mother.

4. That the child spend time with the father as follows:

   4.1For a period of four (4) months from the date of these orders:

   4.1.1Each Thursday from 9.30am until 5.00pm;  and

   4.1.2Each Saturday from 9.30am until 5.00pm

   4.2The father shall undergo urinalysis testing once each ten (10) days until the expiry of four (4) months from the date of these orders and shall provide a certificate as to the result to the mother’s solicitor forthwith upon obtaining same and, in the event that such certificate shows the presence of illegal drugs, time with the child shall be suspended until he provides a clear certificate.

   4.3The father shall complete a post-separation parenting program and an anger management course as arranged with the Anglicare organisation at H, within four (4) months of the date of these orders.

5. After the expiration of four (4) months from the date of these orders, the child shall spend time with the father as follows:

   5.1Each Thursday from 9.30am until 5.00pm

   5.2For a period of three (3) months, from 5.00pm on Friday until 12.00noon on Saturday;

   5.3For a further period of three (3) months, from 5.00pm on Friday until 9.30am. on Sunday;

   5.4Thereafter from 5.00pm on Friday until 5.00pm on Sunday.

6. That the child spend time with the father after he commences his formal education in 2010 as follows:

   6.1Each alternate weekend from 5.00pm on Friday until 5.00pm on Sunday, or Monday in the event of a long weekend.

   6.2Each Wednesday afternoon from the conclusion of school until 6.30pm.

7. That the parents shall provide information to each other about the child by way of a communication book which they shall pass between them at changeovers.

8. That all changeovers take place at P Police Station.

9. That each of the parents keep the other informed at all times of his or her residential address and a contact telephone number.

10. That the father provide to the mother’s solicitor, at least 14 days prior to the commencement of overnight time, full particulars of his accommodation and the furnishings available for the child.

11. That the parents are at liberty to vary these arrangements for the child to spend time with the father by agreement in writing from time to time. 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.

12. That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:

MR HUNTER

Applicant

And

MS WATT

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. Mr Hunter and Ms Watt are the parents of a little boy, who was born in June 2004 and is now three years old.  The parameters of the dispute in relation to parenting arrangements for the child were narrowed considerably by the end of the hearing.  The parents and the Independent Child’s Lawyer agreed that I would give short form reasons for judgment, in the interests of delivering a quick decision.

Background

1. The father, who is 39, and the mother, who is 29, began a relationship in about June 2001 and separated finally in September 2006.  They had been separated on several occasions previously.

2. The father has spend time with the child each Thursday at a father’s playgroup operated by Anglicare at H since interim orders were made by consent on 1 May 2007.  These orders also provided that the child spend time with his father each Monday under the supervision of Mrs B. 

3. Unfortunately Mrs B was unable to continue to act as supervisor after a relatively short time, due to illness in her family.  The child’s time with his father has thus been limited to one occasion per week at the Anglicare Group.

The Proposals of the Parties

1. The Independent Child’s Lawyer prepared a Minute of Orders to which the mother consented.  The father agreed substantially with the scheme of the orders proposed by the Independent Child’s Lawyer but there remained two issues for me to determine.

2. The father wished to move quickly into overnight time with the child.  He proposed a period of three months day contact before moving to overnight time, rather than the six month period suggested by the Independent Child’s Lawyer.

3. When overnight time is introduced the father wishes for the child to be with him from Friday afternoon until Saturday morning for six weeks; then Friday afternoon until Sunday morning for six weeks; and then from Friday afternoon until Sunday afternoon.  These arrangements would operate until the child starts school in 2010. 

4. The Family Consultant, Mr G, observed a warm relationship between the child and his father.  He assessed that the child is happy with each of his parents.  Mr G said in his oral evidence that he observed nothing to indicate that supervision of the child’s time with his father is necessary.

5. Mr G says that he can see value in the proposal of the Independent Child’s Lawyer for two days per week of unsupervised time for six months before the introduction of overnight time. All of the Family Consultant’s recommendations were subject to safeguards of urinalysis testing of the father and his completion of a parenting course.

6. To his credit, the father readily agreed to undertake urinalysis testing and to attend a post separation parenting course.  It seems that he has already made arrangements to attend anger management and post separation parenting courses through Anglicare at H.

Consideration

1. I see no particular magic in the three or six month lead up periods to the introduction of overnight time.  In my view, however, there are at least two advantages to the child of an introductory period of day contact only. 

2. Firstly, circumstances have meant that the child’s time with his father has been limited to the Anglicare father’s group once per week.  He has not been alone in his father’s care for a considerable time.  I note that the father intends to continue to take the child to this group, which seems to be enjoyed by both of them.  Two days per week would allow the child to feel secure with his father before he starts overnight stays.

3. Secondly, a period of clear urinalysis tests would reassure the mother of the child’s safety with his father.  Similarly, she should be heartened by the father’s completion of parenting and anger management courses before overnight stays begin. 

4. The child’s opportunity to spend quality time with his father has been curtailed, through the fault of no one, for a relatively long period in his young life.  It seems to me that the process of introduction of overnight time should be accelerated as much as possible, consistently with his best interests. 

5. If orders for day contact for four months are made, the child will have turned four years old and had over 30 unsupervised occasions of time with his father before he stays overnight with him.  I would include the times at the Anglicare father’s group as unsupervised, as there will be no requirement for the father to remain there for the whole or any part of the Thursday periods of time with the child.  During this period the father will undergo urinalysis and any drug use will be detected. As well, the father will be attending courses through Anglicare.

6. I see merit in the scheme of the father’s proposal for the introduction of overnight time for the child.   In my view, however, the suggested six week stages are too short as they involve only three alternate weekends.  It seems to me that six days would be more advantageous for the child and it is his best interests which are paramount. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              24 April 2008