JORDAN & ROBERTS

[2013] FamCA 6

FAMILY COURT OF AUSTRALIA

JORDAN & ROBERTS [2013] FamCA 6

FAMILY LAW – CHILDREN - spend time with arrangements – best interests of the child.

Family Law Act (1975) (Cth)

APPLICANT: Mr Jordan

RESPONDENT: Ms Roberts

FILE NUMBER: SYC 6964 of 2012

DATE DELIVERED: 17 January 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 14 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: Paltos Briggs Family Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Lam
Antwan Lawyers

Orders

Pending further order:

1. That the parties have equal shared parental responsibility for the child L born on … December 2008 (“the child”).

2. That the child spends time with the father as follows:

   2.1      in week one from 6:30pm on Saturday until 6:30pm on Wednesday;

   2.2      in week two from 6:30pm on Sunday until 6:30pm on Wednesday;

   2.3      from 9:00am to 6:00pm on Father’s Day in the event that the child is not otherwise in the care of the father on that day, provided that she spends time with the mother from 9:00am to 6:00pm on Mother’s Day in the event that she is not otherwise in the care of the mother on that day;

   2.4      for four hours on the child’s birthday if that day falls on a weekend and for two hours if that day falls on a weekday in which she is in the care of the mother;

   2.5      from 6:00pm on Christmas Eve until 2:00pm on Christmas Day for Christmas 2014 and each alternate year thereafter and from 2:00pm on Christmas Day until 10:00am on Boxing Day in 2013 and each alternate year thereafter, provided that she spends time with the mother from 2:00pm on Christmas Day until 10:00am on Boxing Day in 2014 and each alternate year thereafter and from 6:00pm on Christmas Eve until 2:00pm on Christmas Day in 2013 and each alternate year thereafter;

   2.6      at such other times may be agreed by the parties.

3. That in addition to the time as prescribed in Order 2, the father will collect the child from her preschool on each afternoon that she attends preschool and the mother will collect the child from the father’s workplace at G Street, Suburb D or his residence as agreed between the parties.

4. That the child lives with the mother at all times other than the periods prescribed in orders 2 and 3.

5. 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.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6964 of 2012

Mr Jordan

Applicant

And

Ms Roberts

Respondent

REASONS FOR JUDGMENT

the proceedings  

1. Ms Roberts and Mr Jordan are the parents of a little girl, L, (“the child”), who was born on in December 2008 and is now four years old.  These proceedings concern their competing applications for interim parenting orders.

2. Relevantly for present purposes, the applicant father sought the following orders:

   1.That the parties have equal shared responsibility of the child, [L] born on […] December 2008.

   2.        That the child shall live with the mother.

   3.Until the child commences Primary School, the father shall spend time with the child as follows:

   a.Commencing 14 January 2013, Sunday 8:00am until Tuesday 6:30pm.

   b.Each alternate weekend from Friday 6:30pm until Tuesday 6:30pm.

   c.The father shall collect the child from school every Tuesdays until Fridays.

   4.On Australia Day 28 January 2013, the child shall spend time with the mother as agreed between the parties, or failing agreement 10:00am until 2:00pm.

   5.On Easter Monday 1 April 2013, the child shall spend time with the mother as agreed between the parties, or failing agreement 10:00am until 2:00pm.

   6.Order that in addition to time as set out in Order 3 above, the husband to collect the child from preschool on each afternoon that she attends and that the wife collects the child from the husband’s [workplace] at [G Street, Suburb D] or alternatively, the husband’s residence as agreed between the parties.

   7.An Order that the children shall have the following communication with the parents:

   7.1Reasonable telephone communication with the mother when with the father either at the child’s request or with the mother to initiate such calls.

   7.2Reasonable telephone communication with the father when with the mother either at the child’s request or with the father to initiate such calls.

   7.3Each parent shall advise the other of their telephone contact details should he/she be away on any extended period with the children.

   7.4Each parent shall ensure that the children have privacy during telephone conversations with the other parent.

   8.That the parent responsible for the care of the child is to contact the other parent as soon as practicable if the child:

   a.Becomes seriously ill;

   b.Is hospitalised; or

   c.Is involved in an accident; and

   d.Inform the other parent of the name and address of any treating doctor and medical facility.

   9.That each parent shall refrain from making any derogatory or critical remarks or gestures regarding the other parent in the presence of the child.

3. Relevantly for present purposes, the respondent mother sought the following orders:

   1.That the parties have equal shared responsibility of the child, [L] born on […] December 2008.

   2.That the child shall live with the mother.

   3.Until the child commences Primary School, the father shall spend time with the child as follows:

   (a)Commencing 14 January 2013, Sunday 8:00am until Tuesday 6:30pm.

   (b)      Each alternate weekend from Friday 6:30pm until Tuesday 6:30pm.In week two from 6:30pm Sunday to 6:30pm Wednesday;

   (c)The father shall collect the child from school every Tuesdays until Fridays.

   4.On Australia Day 28 January 2013, the child shall spend time with the mother as agreed between the parties, or failing agreement 10:00am until 2:00pm.

   5.On Easter Monday 1 April 2013, the child shall spend time with the mother as agreed between the parties, or failing agreement 10:00am until 2:00pm.

   6.Order that in addition to the time as set out in Order 5 above, the husband collect [the child] from her preschool on each afternoon that she attends preschool and the wife collects [the child] from the husband’s [workplace] at [G Street, Suburb D] or alternatively, the husband’s residence as agreed between the parties.

   7.An Order that the children shall have the following communication with the parents:

   7.1      Reasonable telephone communication with the mother when with the father either at the child’s request or with the father to initiate such calls.

   7.2      Reasonable telephone communication with the father when with the mother either at the child’s request or with the father to initiate such calls.

   7.3      Each parent shall advise the other of their telephone contact details should he/she be away on any extended period with the children.

   7.4Each parent shall ensure that the children have privacy during telephone conversations with the other parent.

   8.That the parent responsible for the care of the child is to contact the other parent as soon as practicable if the child:

   a.Becomes seriously ill;

   b.Is hospitalised; or

   c.Is involved in an accident; and

   d.Inform the other parent of the name and address of any treating doctor and medical facility.

   9.That each parent shall refrain from making any derogatory or critical remarks or gestures regarding the other parent in the presence of the child.

4. By agreement between the legal representatives of the parties, I am not required to determine their competing interim applications in accordance with the lengthy pathway set out by the Full Court in Goode & Goode 2006 FLC 93-286. I will make a decision on the basis of what arrangements I consider to be in the child’s best interests.

Background

1. The father and mother, who are aged 46 and 41 respectively, began their relationship in 2003 and married in February 2005.  They separated on 1 August 2011 but remained in the same residence until 8 December 2012, when the mother moved into separate accommodation.  It seems that the parties were able to agree on arrangements for the care of the child while they lived separately and apart under the one roof. 

Consideration

1. On 14 January 2013 the parties attended a conference with a Family Consultant, who prepared a memo for the assistance of the court.  The Family Consultant reported “that the parents agree in principle that [the child] lives with each of them on an equal time basis” but disagreed on the configuration of the days in each fortnight.  Despite this agreement, the mother sought interim orders which would see the child spend eight days per fortnight in her care and the balance of her time with the father.

2. It was agreed that, on relevant days, the father would collect the child from pre-school and the mother then take her to her home from his residence or workplace when she finishes work.  The essence of the dispute was whether the child should spend six or seven days per fortnight in the care of the father.

3. The mother raised allegations of family violence and possible mental illness against the father, which are obviously entirely untested at this stage of the proceedings.  These allegations are clearly inconsistent with the agreement reported by the Family Consultant and the mother’s own proposal that the child spend six days per fortnight in the care of the father.  It thus seems to me that these allegations are no bar to interim orders for an equal time arrangement as proposed by the father.

4. I see no reason why the child should not spend equal time with each of her parents.  They live in close proximity with each other and both have employment commitments, which affect their availability to care for the child.  I accept that both parents played a significant role in the care of their child prior to 8 December 2012 and that she is highly likely to have a close, secure relationship with each of them.  It seems to me that she would benefit from an ongoing significant involvement in her day to day life with each of her parents.  Accordingly, I will make orders essentially in accordance with the father’s Application in a Case filed 12 December 2012.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 17 January 2013.

Associate:     

Date:              17 January 2013