Jackey and Lyone

[2008] FamCA 66

FAMILY COURT OF AUSTRALIA

JACKEY & LYONE [2008] FamCA 66

FAMIY LAW – CHILDREN — With whom a child spends time—where previously child spent six days per fortnight with Father—where attendance at preparatory school curtails time spent—whether Father has made concessions as to school attended—where Father seeks time spent on a week about basis—Orders to that effect made.

APPLICANT: MR JACKEY

RESPONDENT: MS LYONE

FILE NUMBER: BRC 4670 of 2007

DATE DELIVERED: 24 January 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 24 January 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Potts

SOLICITOR FOR THE RESPONDENT:	Mr Kearney
INDEPENDENT CHILDREN'S LAWYER	Ms Brunswick

Orders

IT IS ORDERED THAT:

1. Pursuant to Division 12A of the Family Law Act 1975, the provisions of the Evidence Act 1995 (Cth) referred to in sections 190(1)(a), (b) and (c) are dispensed with to the extent required to permit the admission of all material place

   before the Court as evidence, subject to the application of proper weight, a and to conduct the procedure of the hearing as envisaged in the Practice Direction No 2 of 2006. In making this Order, I do so on the ground referred to in section 190(3)(b) of the Evidence Act.  I have taken into account the matters referred to in section 190(4).  I also take into account the aims of the Less Adversarial Trials Program.

1. Pursuant to Sec 62G of the Family Law Act, 1975 a Family Report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services. 

1. The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party.

1. The report writer has leave to travel to the Sunshine Coast for preparation of the Family Report.

1. The parties shall attend and ensure the child attends all necessary appointments for the preparation of the Family Report.

1. The matter is adjourned for continuation to 10.00 am on 27 March 2008.

1. The parties granted leave to appear by telephone at the said mention on 27 March 2008.

1. 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 UNTIL FURTHER ORDER THAT:

1. The Father is to spend time with the child, … born … December 2002, on a week about basis commencing from:

a.   9.00 am on 28 January 2008 with the Father to collect the child from the Mother’s residence and returning the child to school on the following Monday;

b.   in the event the Monday is a holiday the child is to be returned to the other parent’s residence rather than to school at 9.00 am on the Monday morning;

c.   at all other times the child is to be in the care of the Mother save for school holidays as provided for in these Orders.

1. The Father is to spend half school holidays with the child being the first half of the holidays in 2008 and each alternate year thereafter.

1. The Mother is to spend half school holidays with the child being the first half of the holidays in 2009 and each alternate year thereafter.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS DIRECTED THAT:

1. The Minutes of Consent remain upon the Court file.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Barry delivered this day will for all publication and reporting purposes be referred to as Jackey & Lyone.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4670 of 2007

MR JACKEY

Applicant

And

MS LYONE

Respondent

REASONS FOR JUDGMENT

1. I will order a report to be prepared by Ms M.  I request that such report be prepared in the Sunshine Coast area so that Ms M will have the opportunity to see the parties in their home environment.  This should not prove difficult because the hours the father works are limited and he is effectively working from home and the mother is available full time also.

2. I propose to adjourn this matter through to 27 March.  I am unable to contact Ms M at the moment to confirm she can prepare the report within that timeframe.  It is a little over two months.  She has to set times for the interviews; attend the Sunshine Coast; come back and then have time to write the report.  I will adjourn this matter at this stage to 27 March for mention.  It is not for final hearing, but it is just for the receipt of her report and then to estimate how long the matter is going to take to hear any further progress as to how things have developed.

3. There was a dispute between the parties as to which school the child should attend.  The child is starting prep school next week.  The father proposed C State School which he says is approximately midway between his home at T and the mother's home at N.  The mother proposed the school at S which is in relatively close proximity to where she resides. 

4. The mother has proposed that the father spend time with the child on alternate weekends from Friday afternoon until Tuesday morning.  Effectively this still only gives the father two days a fortnight, being the Saturday and the Sunday.  The child would be at school all day the Monday.  It does give him three nights a fortnight. 

5. The parties have entered into interim consent orders on a number of issues that includes an issue about the discharging of an undertaking and the fact that it is agreed the child will attend the S School. 

6. Under the current order the father had six days a fortnight with the child.  That order in ordinary circumstances would have continued for this year but for the fact that the education system has changed between the making of that decision and now in that a prep year has been introduced and the child will be attending that year.  Accordingly, if the order was to be strictly enforced the father's time would be limited to Saturday and Sunday once a fortnight.  To my mind at an interim hearing it is better to adhere to the spirit of the law as well as the letter of the law, and the spirit of the law was that the father's time with his son would be significant.  That order is frustrated by the fact that the child will be at prep school. 

7. I shall digress for the moment just to say that in discharging the undertaking I make the following comments.  I appreciate the parties agreed to that undertaking.  The undertaking, which has been in existence since May last year, was the father would not allow his son to come into contact with two of the neighbour's children then aged four and six.  Presumably they are now aged five and seven.  There was an air of unreality about the way the parents handled issues in relation to this.  I note there was a notice of risk of child abuse filed by the mother.  The parents or their lawyers, I am not sure which applied for this matter to be dealt with as a Magellan case.  I simply shake my head in astonishment.  The parties have got no idea at the sort of gross sexual abuse cases we deal with when we are dealing with Magellan type cases.  They are at the serious end of the spectrum.  Here you have got a couple of five year olds meddling about under the house or beside the house and it was blown out of all proportion.  In any event I would have thought the undertaking was far too wide.  Why was it not that simply the father would not allow the children to play unsupervised.

8. I note that in the course of the reasons for judgment back in November 2005, despite the wide ranging allegations that the parties seemed to throw up and their concerns and anxieties, the learned Federal Magistrate had no real concerns about the parties' respective parenting abilities.  For the present time I share that view.  Children do fall off bikes.  Children do have other types of accidents.  Some young children do engage from time to time in experimental, exploratory actions of a sexual nature.  To suggest, as the mother does, because the five year old child had an erection at some stage, therefore he must be viewing porn on the father's computer, is drawing an extremely long bow indeed.  The father's concerns the child must be viewing the mother engaging in behaviour of a sexual nature seems equally far fetched.  I suggest that both parents go away and take a cold shower before making any allegations against the other.  They are very hurtful as allegations and they do not assist in an already stressful situation.  So think long and hard before such matters are raised.

9. I turn back to the sole issue I have to determine, namely, what time should the father have.  He says seven out of 14.  The mother says three nights out of 14 but, effectively, it is only the weekend time.  The independent children's lawyer says well, make it two weekends out of three for the father, from Friday afternoon till Monday morning or three weekends out of four.  If it was to be three weekends out of four on my calculations that would be nine nights out of 28 or four and a half days a fortnight. 

10. I have referred to the current order.  The mother is really proposing that the father goes from six days to two days, three nights.  The received wisdom is that as children get older then the parent who is not the primary parent should be spending increasingly longer periods of time.  What the mother is proposing is a significant reversal of the present arrangement.

11. I am assuming the parties lived in reasonable proximity at the time of the original order.  That matter is now complicated by the tyranny of distance in that they are living about 50 kilometres apart.  I can mention in passing that no-one raises the issue of Rice v Asplund, the case which says that parties cannot re-litigate unless there are changed circumstances.  I think the parties generally accept that the matter has to be revisited no matter how unfortunate that is.

12. My concern about acceding to the father's proposal is the fact that for five days a fortnight the child will be involved in driving 100 kilometres a day.  The father says he does not mind doing the driving.  It is quality time that he can spend with his son.  His son can watch DVDs or presumably listen to CDs if he is bored.  There is concern raised, appropriately by the father, about the child's close relationship with his half brother, but it is said that the half-brother has periods of going overseas, there is a fair age gap and that it is better for the child to have an ongoing close relationship with his father than simply to say that he has to spend all his time in the company of his brother. 

13. In relation to holidays the father says it should be half school holidays.  The mother says four weeks only.  As contained in paragraph 4(d) of Registrar Rimmer's order, that order really only came into effect once the child starts year one, however, the parties are agreed there should be school holidays and I will be making some orders in relation to that.

14. The mother argued that to allow one week about was too disruptive for the child.  The child would be living in a different household each week.  It is too confusing, too difficult and too much driving involved.  I have had to weigh the matter up as best I can in an abbreviated hearing today.  I appreciate the matter will be coming back before me in March.  I am trying to pencil in some days in June when I can hear this matter on a final basis, but whether I can hold those dates in June I am unable to say.  Much will depend on how long this matter is likely to take if it proceeds to a hearing on the issues of relocation and joint periods of time.

15. On balance, I am going to side with the father on the basis that it accords more with the spirit of Federal Magistrate Rimmer's order which was six days a fortnight.  Here, because of the distance, the father has made the concession about the S School, which is to his credit.  He gets marks for that.  He is prepared to do the driving.  The easiest way is to split it equally.  There is an order for joint parental responsibility.  I am also concerned that if by mid-year the mother's application be successful, the father's time with the child will be seriously curtailed.  He may be seeing the child three times a year for a number of weeks when he travels to Switzerland, but he would have work commitments at that time and he may elect to stay on and see his son, but it is a far cry from seeing the child on a weekly basis.  So for the present time I propose to order that there be week about.  The father's time with the child can commence - I know it is a public holiday, but we will make it from 9 am Monday the 28^th.

    RECORDED  :  NOT TRANSCRIBED

16. So then the father will have from 9 am on 28 January.  The parties could put aside their daggers and swords and actually attend the school together and enrol the child.  You do not have to be overly affectionate to be able to do that for the sake of your son, as long as you are not engaging in disputation, engaging in angry, dysfunctional behaviour.  That would be the worst possible scenario, but it will be a joy for your son to start his educational career with both parents attending at the school on the Tuesday morning, but the father can collect the child from the mother's residence at 9 o'clock Monday and he will deliver the child to school on the following Monday, which is 4 February, and then the mother will have time with the child, effectively from that Monday morning through to 11 February and the father will then collect the child and so it will go on.  I can review the matter.  It is only going to operate for a period of two months.  I will look at the matter at that stage.  It may be the father will say well, it is too much on the child to involve the child in the amount of driving and seek to change it.  I would hope the parties could start to cooperate.

    ORDERS DELIVERED  

17. I am conscious when making these orders that I will be reviewing this matter both in March and at the trial of this matter which is likely to be mid year.

18. In relation to the matters raised as to the father giving full financial disclosure, I expect that would be given.  I am not going to make an order.  It is not a big ask.  It is not an expensive ask.  The mother is entitled to that basic information.  What is good for one side is good for the other.  You are entitled to ask the mother about her financial position and how she is going to maintain the child and what is her contract.  So I will discharge the undertaking.  I have made orders in terms of the interim orders.  I have adjourned it to a fixed date.  I have made orders for week about, half school holidays. 

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  24 January 2008