Lines and Lines (No 2)

[2018] FamCA 1118

FAMILY COURT OF AUSTRALIA

LINES & LINES (NO. 2) [2018] FamCA 1118

FAMILY LAW – CHILDREN – Parenting – Where views of a mature child are relevant – where a child is interviewed by a Family Consultant on the morning of the proceedings  – Where a Family Consultant provides the Court with evidence as to a child’s views  – where certain orders made by consent – where other orders made without consent  – where balance of judgment reserved.

Family Law Act 1975 (Cth)

APPLICANT: Ms Lines

RESPONDENT: Mr Lines

INDEPENDENT CHILDREN’S LAWYER: Mr P Smith

FILE NUMBER: MLC 1921 of 2017

DATE DELIVERED: 19 December 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 19 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Messner

SOLICITOR FOR THE APPLICANT: Moylan Family Lawyers

SOLICITOR FOR THE RESPONDENT: Snedden Hall & Gallop

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. It is ordered by consent for the Christmas school holidays 2018/2019 the children X, Y and Z spend time with the Father:

   (a)       from 6pm on 21 December 2018 to Friday 28 December 2018 at 6pm;

   (b)       from 6pm Friday 4 January 2019 to 6pm 7 January 2019; and

   (c)       from 6pm Friday 11 January 2019 to Sunday 13 January 2019 at 6pm.

2. That the children otherwise spend time with their Mother during the school holiday period.

IT IS ORDERED (OTHERWISE THAN BY CONSENT)

1. That the changeover for the above orders will be at the B Park.

2. That pending X's return to spend the Christmas period with her Father on 21 December 2018 that the Mother will have the care of X and that X will spend time with the Mother from the close of this hearing until the commencement of that school holiday time as indicated above.

IT IS FURTHER ORDERED, BY CONSENT

1. That the parties attend upon Dr C on 25 February 2019 for the purposes of the preparation of an expert report.

2. That upon the release of the said expert report the parties attend mediation in March 2019.

3. In support of the appointment of Dr C as a single expert the parties are to confer within the next 28 days regarding terms of reference for Dr C.

4. In the event that the parties are unable to resolve within 28 days the terms reference for Dr C then the matter may be listed at short notice before me for the purpose of settling terms for the preparation of that report.

5. The Independent Children’s Lawyer is at liberty to exercise photocopy access to all subpoenaed material and upon consultation with the parties to provide relevant portions of that material to Dr C.

IT IS NOTED THAT

1. The matter is currently listed on 4 February 2019.

IT IS ORDERED THAT

1. In the event that a party seeks to pursue orders other than the settling of terms for the single expert on the next occasion then it is incumbent upon that party to make a timely application such that their case might be heard on that day.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lines & Lines (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: MLC 1921 of 2017

Ms Lines

Applicant

And

Mr Lines

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter before me today concerns the living arrangements for the children of the parties, those children are X who is 13 years old, Z, who is 11 and Y who is eight years old.  Until recently it is uncontroversial that the three children lived primarily with their Mother in Region D of New South Wales and generally spent time by agreement on a regular basis with the Father, although for a period of time late this year there has been an interruption to the time that they have spent with the father.

2. On 7 December 2018, following what may have been a disagreement between the parties as to whether X was to spend that weekend with the Father, X was collected from school by the Father and has remained with him since then.  The Father's case is that X has expressed the view that she wishes to live with the Father.  This will be a matter that will be canvassed in greater length on the delivery of what will be a reserved judgment dealing with the more fundamental arrangements for where the children are to live.  It is necessary to touch upon it now as the school holidays have either commenced or are shortly to commence and it is necessary to make orders today which will deal with how the children will spend their school holidays and whether X will return to the Mother's care immediately for a short period of time. 

3. In dealing with the school holidays the parties have agreed that order 8 and 9 of exhibit W3, representing the minute of orders sought by the Mother should be made.  While these orders do not provide for the children have equal time with each of the parents across the school holidays they provide for the Father to spend a block of time over Christmas Day with the three children and for the Mother to have a longer block of time towards the end of the holidays whereby she can take the children on a prearranged holiday.  Although the matter has had some difficulty for the parties, during exchange with the Father's lawyer the Father has indicated that he does not contest those arrangements being put into place for this Christmas holiday.  Accordingly, I will make orders in accordance with order 8.

4. On making orders in accordance with order 8 it may be seen that the children will spend a period from 21 to 28 December 2018 with the Father.  It is now 19 December and the question arises as to what arrangements should be made for X pending her spending time with the Father from 21 to 28 December 2018.  In resolving that particular issue it is notable that X was interviewed by the Family Consultant, Ms E, during today's proceedings.  She expressed a view to Ms E of a desire to live primarily with her Father, but on the basis that she would board during each week at the school she has been attending, F School, and spend alternate weekends with her parents.  It should also be noted that the Father's application is founded upon the notion of what he understands to be X's views.  To that extent X's views are important on his case as well as being generally important in the proceedings.  I note that she has been assessed by the Family Consultant as a mature, or rather quite mature, young woman, attending high school. 

5. The particular expression from X about the pattern that she wants to spend between her parents illuminates the appropriate resolution for what should happen pending the children commencing to spend a Christmas holiday period with the Father, noting that on the orders that have been agreed between the parties she will spend from 21 to 28 December 2018 with the Father and noting that she has been with the Father since 7 December until 19 December, a period of 12 days.  What would accord with the general pattern that she has indicated in her preference to the Family Consultant would be for her now to spend the short period of time between today and the return to her Father for the Christmas school holidays with her Mother.  Accordingly, orders will be made to such an effect. 

6. The balance of the matters in dispute between the parties will be reserved.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 19 December 2018.

Associate: 

Date:  21 December 2018