Labeck & Calandros (No 2)

[2021] FCCA 542

FEDERAL CIRCUIT COURT OF AUSTRALIA

Labeck & Calandros (No 2) [2021] FCCA 542

File number:	DNC 115 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	19 February 2021
Catchwords:	FAMILY LAW – parenting – concerning two children who are four and three years old – whether the children’s time with the father should be increased – where the father seeks to decrease the amount of changeovers – where the children are showing signs of distress at changeovers from the mother to the father’s care – where the mother’s behaviour at changeover may be negatively influencing the children – where the mother agrees not to be present at changeover – court satisfied the children should spend increased time with the father.
Legislation:	Family Law Act 1975 (Cth) s 11F
Number of paragraphs:	14
Date of last submission:	19 February 2021
Date of hearing:	19 February 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Farmer of Withnalls Lawyers
Solicitor for the Respondent:	Ms Bowen of Bowen Lawyers
Solicitor for the Independent Children's Lawyer:	Ms Tregear of Arafura Legal

ORDERS

DNC 115 of 2020

BETWEEN:

MR LABECK

Applicant

AND:

MS CALANDROS

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	19 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The Order 1(c) of the Orders made on 3 September 2020 be discharged.

2.X born in 2016 (“X”) and Y born in 2017 (“Y”) shall spend time with the father commencing 19 February 2021 as follows:

(a)For X, from Friday at the conclusion of school or if a non-school day at 4:30pm until 12:00pm on Sunday;

(b)For Y from Friday at 4:30pm until 12:00pm on Sunday.

3.For the purposes of changeovers the following shall occur:

(a)If X is at pre-school or school:

i.The mother is to arrange for a third party to deliver Y to A Family Services at 4:30pm each Friday;

ii.The father shall collect X from B School at the conclusion of school each Friday.

(b)If X is not at pre-school or school:

i.The mother is to arrange for a third party to deliver X and Y to A Family Services at 4:30pm each Friday.

(c)The father shall deliver X and Y to A Family Services at 12:00pm each Sunday.

4.The mother is not permitted to travel with the child or children to changeover or to be present at changeover at A Family Services each Friday.

5.The mother is not permitted to attend X’s school after 12:00pm on any day the child is to be collected by the father.

6.The mother is permitted to attend A Family Services for the purpose of effecting changeover at 12:00pm on each Sunday.

7.Order 2 and 3 be suspended for the period of Easter 2021 with X and Y to spend time with the Father from Thursday 1 April 2021 at 4:30pm until Saturday 3 April 2021 at 12:00pm with all changeovers to occur at A Family Services.

AND IT IS ORDERED:

8.That the contravention application be adjourned and the matter be listed for trial on 14, 15, and 16 April 2021 at 10.00am (allowing three days).

9.That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

10.That on or before 28 days prior to trial the applicant pay the setting down fee and such further daily hearing fee should the matter continue to day 3 and the respondent pay such further daily hearing fee on day 2 as required pursuant to the Family Law (Fees) Regulation 2012.

11.That at least 48 hours prior to trial, Counsel for each party  and the Independent Children’s Lawyer file and serve a Case Outline document which clearly identifies the following:

Parenting orders

(a)a list of the material relied upon;

(b)a brief chronology listing significant events;

(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

(d)a list of other contentions relevant to the decision;

(e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

(f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

(g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

(h)the actual orders sought.

12.That the mother is to file and serve any affidavit in response to the contravention application no later than 14 days before the date of the next hearing.

THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Labeck & Calandros (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application concerning two children, X and Y, who are four years and ten months and three years and eight months old respectively. The application is in two parts. It is an application by the mother for an adjournment of the application in a case brought by the father which was filed on 15 January 2021. The father’s application in a case seeks to vary the existing time orders to provide for the children to spend three nights a week with the father, namely from Friday to Sunday night. The existing time orders provide for the two children to spend two nights a week with the father on non-consecutive nights, namely Wednesday and Friday nights.

3. Part of the apparent justification for the father’s application in a case is that there have been clear changeover difficulties, particularly with X. The notes from A Family Services indicate X has on a number of occasions refused to go to her father at the time of changeover.  Y, as it appears in recent times at least, has gone enthusiastically. 

4. Part of the challenge in this case has been dealing with what appears to be evidence of the children’s anxiety about transitioning from the mother to the father. That has resulted in an order for non-consecutive nights during the week with the father.  It should be stated the orders are built up from day-time to night-time. 

5. The present recommendation of the family consultant is that the children should spend at least two nights a week with their father. This is articulated by the family consultant in the s 11F of the Family Law Act 1975 (Cth) memorandum. This has been given effect to but it has become apparent that there are difficulties at changeover.

6. On my reading of the A Family Services notes the suspicion must arise that X, in particular, is reading verbal and non-verbal cues from the mother. It appears X interprets these cues as the mother not wishing her to transition to the father’s care. I am not suggesting that the mother is expressly discouraging the child, however, I believe there is clear evidence that the child is interpreting the mother’s behaviour in a particular way.

7. A number of things flow from that. The changeovers are likely stressful, for X in particular, and the number of changeovers in the week should be decreased if possible. I also consider that the mother ought to be removed from the changeover to see if that produces a more positive response from X. The notes make it clear that Y in recent times has transitioned to her father without difficulty and is enthusiastic about spending time with the father. 

8. The mother has, for reasons that have not been explained, come to Court today represented by Ms Bowen who is saying that her instructions from the mother were only very recently resumed within the past day or so. This is despite the fact the mother was served with the application on 15 January 2021. Ms Bowen said that, as a result, she is at a disadvantage and I accept that because it is evident there is no affidavit from the mother. I am therefore reluctant to have a full interim hearing about the matter. My reluctance is reinforced by the fact that the matter is set down for trial on 14, 15 and 16 April 2021 which is less than two months away.  Ordinarily, an interim hearing would not be held two months out from trial.

9. However, the mother has made certain proposals which I think ought to be adopted.  She has proposed that there be an order that she is to arrange for a third party to deliver the children to A Family Services for changeover and that she will not be present at changeover, nor will she be present when the children are being delivered to A Family Services by the third party.  

10. I propose to make an order in those terms. The mother is not to be present at changeover and she is to arrange for a third party to facilitate changeover.  I note that the person likely to do that is the maternal grandfather. I will also note that the mother indicated she will not travel in the car delivering the children to changeover. The only time the mother is to be present at changeover is when the mother is collecting the children after they spend time with the father.

11. Secondly, the mother proposed an order, which I will make, that she will not attend X’s school after 12:00pm on any day that X is to be collected by the father or before 9:00am on any school day when the child is to be collected by the mother.  Whether or not there is any scope for that order is unclear. I was told that the child was only attending on a limited basis for pre-school hours which are Monday and Tuesday in one week and Monday, Tuesday and Wednesday in the other week. Having regard to the orders I propose to make there will not be changeovers at school most of the time.

12. There will also be orders that the children are to spend time with the father from Friday until Sunday at 12:00pm. If the children are at school they are to spend time with the father from the close of school on Friday. If it is a non-school day the children are to spend time with the father from Friday at 4.30pm with changeover to occur at A Family Services.

13. I have already made trial orders so I will not make further trial orders.

14. In relation to the contravention application the mother is to file and serve any affidavit in response no later than 14 days before the hearing which will take place before the trial on 14 April 2021.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       19 March 2021