Katsapis & Grunwald

[2007] FamCA 169

FAMILY COURT OF AUSTRALIA

KATSAPIS & GRUNWALD [2007] FamCA 169

APPEAL – CHILDREN – With whom a child spends time – Best interests of child – Parties agreed that appeal should be allowed and remitted for rehearing – Question only of interim orders – Father sought that 6 year old child spend time with him for an additional afternoon each week – Independent Children’s Lawyer did not oppose the father’s proposal, save to voice concerns about the effect which too many changes in arrangements might have on the child – Mother’s opposition to the proposal based mainly on practical difficulties – Child’s welfare marginally more likely to be advanced by reintroduction of the additional afternoon with the father – If that proves to be unsatisfactory it will be dealt with at final hearing.

Family Law Act 1975 (Cth)

APPELLANT: MR KATSAPIS

RESPONDENT: MS GRUNWALD

APPEAL NUMBER: NA 65 of 2006

FILE NUMBER: BRF 4954 of 2003

DATE DELIVERED: 27 February 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Kay, Coleman & Warnick JJ

HEARING DATE: 27 FEBRUARY 2007

REPRESENTATION

COUNSEL FOR THE APPELLANT In person

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT: Mr Waterman

SOLICITOR FOR THE RESPONDENT: Grasso Searles & Romano

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Selfridge

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Michael Lynch Family Lawyers

Orders

1. That the appeal be allowed by consent

2. That the amended application of the mother filed 12 April 2005 and the father's response filed 27 May 2005 be remitted for rehearing with priority at the Brisbane registry before a Judge other than Barry J.

3. That O 1 to 14 of the orders made by Barry J on 20 October 2005 be set aside upon the hearing and determination of the remitted matters or further order.

4. That pending the said hearing the child spend additional time with the father during school term each Thursday from 3 pm to 6.30 pm.  The father is to collect the child from school and the mother is to collect the child from the father's home.

   RECORDED  :  NOT TRANSCRIBED

5. Make further orders that each of the parties receive the relevant costs certificates under the legislation.

FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: NA 65 of 2006
FILE NUMBER: BRF 4954 of 2003

MR KATSAPIS

Appellant

And

MS GRUNWALD

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. KAY J:  Before the Court today is an appeal from orders made by Barry J on 20 October 2005.  It has been agreed between the appellant father and the respondent mother that the appeal should be allowed and the proceedings that were before Barry J on 20 October 2005 remitted for rehearing.

2. At the time of the hearing the applications concerned issues of residence, long-term care, welfare and development and contact for the child of the parties Y born in November 2000.  The terminology has changed since those orders were made and any fresh proceedings will now need to be conducted in light of the amendments that took effect from July 2006. 

3. There is a fairly narrow issue for us to determine today and that is whether in addition to the contact orders that were made by Barry J on 20 October 2005 there should be a further order made that the child spend time with his father each Thursday during school term from 3 pm until 6.30 pm.

4. That was the contentious issue before Barry J in October 2005 and it appears to remain the singularly contentious issue between the parties in the future proceedings, although of course the changes to the legislation may now make some of the other orders that were made by Barry J relating to sole responsibility for long-term care, welfare and development equally contentious.

5. We have determined to accede to the application made by the father for the child  to spend additional time pending the further hearing. 

6. We have heard submissions from the mother's counsel, from the Independent Children's Lawyer and from the father.  The Independent Children's Lawyer says that there is no opposition to the proposals put by the father, that is to reinstate the mid-week contact that had been in existence before the orders that were made on 20 October 2005, but that is subject to the caveat of the Independent Children's Lawyer that a change to now reinstate may well ultimately be withdrawn on the rehearing and that there is then the risk that is faced of the child having to have a change in routine and then a change back in the routine.

7. The mother's opposition to the reimposition of the mid-week time with the father is based upon mainly practical difficulties involved with it.  It is said to provide an opportunity for the father perhaps to have the child become oppositional to the mother in terms of his behaviour.  It is said that it would be disruptive to the child's schooling, suggesting that there are difficulties in working out who would be responsible for the child's dinner, his homework and his bathing. 

8. It seems to us that the difficulties are likely to be more imaginary than real.  It is unlikely that the father would not feed the child and/or attend to the child's homework on an interim basis, but if either of those matters are not attended to then there would be opportunities for the mother to make amends in terms, firstly, of feeding the child when she gets him home, doing his homework at some stage, if indeed a child of this age has homework to be done.  There will be an opportunity to complain at the hearing of the proceedings of how in fact the father has failed to attend to matters that are necessary for the welfare of the child.

9. It seems to us that we have little material upon which we can determine this issue other than to look to, firstly, some now stale material that was before Barry J from a welfare report that recommended the continuation of mid-week contact between the father and the child and then, secondly, to look to some of the legislative changes that have occurred in the meantime. Our obligation is to make an order that regards the best interests of the child as the paramount consideration and to give consideration to matters set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). One of the primary considerations is the benefit to the child of having a meaningful relationship with both of the child's parents.

10. Whilst it is arguable as to whether the continuation or the reintroduction of mid-week contact is necessary for a meaningful relationship, the legislature makes it clear in s 65DAA(2), which does not strictly apply to the process we're undertaking today, that the Court ought to give consideration to a child spending substantial and significant time with both parents.  That is defined as including days that do not fall on weekends or holidays (see 65DAA(3)).

11. On balance it seems to us that the prospects for advancing the welfare of the child are marginally more likely to be advanced by the reintroduction of the opportunity for the child to spend time with the father.  If that proves to be unsatisfactory from the child's perspective then that is a matter that will be promptly determined by the trial judge at the remitted hearing.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate: 

Date:  8 March 2007