Kemp and Spektor

[2007] FamCA 1534

FAMILY COURT OF AUSTRALIA

KEMP & SPEKTOR [2007] FamCA 1534

FAMILY LAW – CHILDREN – With whom a child lives – Residence

Family Law Act 1975 (Cth)

APPLICANT: Mr Kemp

RESPONDENT: Ms Spektor

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3501 of 2005

DATE DELIVERED: 17 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hanlon

SOLICITOR FOR THE APPLICANT: Harwood Andrews Lawyers

COUNSEL FOR THE RESPONDENT: Mr Renwick

SOLICITOR FOR THE RESPONDENT: Kennedy Guy

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr Whitchurch

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Agricola Wunderlich & Associates

Orders

Children's Orders

1. That the mother and the father have equal shared parental responsibility for the long term decisions regarding the care, welfare and development of the child … born … February 2004 (“the child”).

2. That the child live with the father:

   (a)From 4pm Friday to 8.45am Monday every alternative week at which time she is delivered to the Mother at her residence, unless the Monday is a Gazetted Public Holiday or School Curriculum day in which case the child shall be returned at 8.45 am on the Tuesday.           

   (b)In the alternate week from 4pm Thursday and until 8.45am Friday at which time she is delivered to the Mother at her residence, unless the Friday is a Gazetted Public Holiday or School Curriculum day in which case the child shall be returned at 6pm on the Friday

   (c)At Christmas:

   (i)commencing 2007 from 12 noon on Christmas Eve 24 December until 3.30 pm Christmas Day;

   (ii)commencing 2008 from 3.30 pm Christmas Day until 6 pm Boxing day and in each Christmas even numbered year thereafter.

   (d)During the Christmas (December/January) holiday period in 2007/2008 from 4 pm on 20 January 2008 until 6pm 28 January, 2008.  

   (f)For one half of the Christmas (December/January) holiday period in the years  commencing 2008/2009 at times to be agreed between the parties and in default of agreement during the first half of such period.

   (g)For one half of all school term holiday periods for the State of Victoria at times to be agreed between the parties and in default of agreement for the first half of such holiday period.       

   (h)In the event that the child is scheduled to be with the mother during a weekend upon which Fathers Day falls then the child be provided to the father for the period between 6 pm on the Saturday and 8.45 on the Monday of such Fathers Day weekend.

   (i)In the event Mothers Day falls upon a period when the child is in the care of the father then the child be returned to the mother for the period between 6 pm on the Saturday and 8.45 am on the Monday of such Mothers Day weekend. 

   (j)On the child’s Birthday, … commencing 2008 and every even numbered year thereafter from 5pm until 9.30 am the following day (where the following day is a school day) and until 8.45 am (where the following day is a weekend)

   (k)       at other times as may be agreed between the parties.

   (l)Both parties shall ensure the child has with her at all changeover any necessary items such as school books, uniforms, bags, shoes, medication and the like.

3. (a)      That for the purposes of exchange of the child save and except for that required under paragraph 2(b) herein the mother deliver the child to the father at his residence at the commencement of the period and the father return the child to the residence of the mother at the conclusion of the period.

   (b)That for the purposes of paragraph 2(b) herein the child be collected and returned by the father to the mother’s residence at the commencement and conclusion of the period.

4. That the child live with the Mother at all times other than times listed in paragraph 2.

5. The mother and the father provide to each other and keep them informed of a landline telephone number for the purpose of facilitating telephone communication with the child each Wednesday between 6.30pm and 7.30pm which communication shall include the mother telephoning the child at that time during periods when the child is holidaying with the father.

6. That both parties attend confidential counselling through Relationships Australia to assist the parties with the management of these orders and to obtain an agreement pertaining to the child’s education and facilitate better communication for the benefit of their daughter.  In the event that an agreement is unable to be reached within a reasonable period then liberty be reserved to the parties to apply to the Court for a determination. 

7. Neither party shall enrol or commit the child to participate in any activity which will limit, hinder or prohibit the child spending time with the other Parent without the other Parent’s consent.

8. Each parent shall inform the other should the child require any emergency Medical or Dental treatment.

9. Both parents be entitled to receive copies of the child reports, newsletters and general activities pertaining to the child’s education.

10. The mother be restrained from changing the place of residence of the child save and except to relocate to one of the following areas:

    (a)       Within 20km of the Geelong GPO

    (b)       The city of Hobsons Bay (including Altona & Williamstown)

    (c)       The city of Wyndham (including Werribee South)

    (d)       Remain in Bacchus Marsh, Ballan, Greendale or Blackwood.

11. That the mother provide to the father not less than 30 days notice of any proposed move including details of the address and premises to which she intends moving.

12. That liberty be reserved to the parties to apply generally.

13. All extant applications be otherwise dismissed and the matter removed from the pending cases list.

Notation

That pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, 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 those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3501 of 2005

MR KEMP  

Applicant

And

MS SPEKTOR  

Respondent

REASONS FOR JUDGMENT

1. In the matter of Kemp and Spektor, this is a matter in which the parties had litigated in relation to a little girl … who is almost four years of age.  She will be four in February 2008.  The essence of the proceeding has been the development of the relationship between the child and her father.  The parties lived together for a very limited period of time and the child has had a staggered start to developing a relationship with her father, but that now seems to be well and truly on the way. 

2. The contentious issues between the parties had been the mother's desire to relocate with the child to the southern coast of New South Wales, which would have made any prospect of the relationship with the child developing very difficult, having regard to the fact that she has spent limited periods of time, albeit regular, with her father.  This arrangement now puts the relocation issue off the agenda.  There is a specific restraining order provided in these orders, as well as indications that each party has to keep each other informed about their movements. 

3. The arrangements set out for the child are very sensible and I commend the parties accordingly.  I am satisfied that these are matters that are in the best interests of the child.

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

Associate

Date:  31 December 2007