Martin and Morris
[2008] FamCA 466
•20 June 2008
FAMILY COURT OF AUSTRALIA
| MARTIN & MORRIS | [2008] FamCA 466 |
| FAMILY LAW – CHILDREN – With whom a child lives |
| APPLICANT: | Ms Martin |
| RESPONDENT: | Mr Morris |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLF | 3339 | of | 2006 |
| DATE DELIVERED: | 20 June 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Dessau J |
| HEARING DATE: | 20 June 2008 |
REPRESENTATION
| FOR THE APPLICANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | Ms N. Watts |
| INDEPENDENT CHILDREN'S LAWYER COUNSEL: | Ms C.J. Jenkins |
| INDEPENDENT CHILDREN'S LAWYER SOLICITOR: | Victoria Legal Aid |
Orders
That the Husband and wife have joint, shared parental responsibility for the future welfare and development of the child of the marriage, … born … July 1997 (“the child”).
That the child live with the Husband on a day to day basis.
That the child spend time with and communicate with the Wife as follows:-
(a)That the Wife communicate with the child each Wednesday by telephone at 7.00pm provided that if the Wife is affected by alcohol when she contacts the child, the Husband is at liberty to terminate the call.
(b)During school terms and during school holidays from after school on Friday (or 3.00pm on a non school day) until 6.30pm on Sunday commencing this day and on every fourth weekend thereafter.
(c)If Mother’s Day is not a day when the child would be spending time with his mother from 9.30am until 6.30pm.
(d)From 5.00pm on 25 December 2008 until 5.00pm on 26 December 2008 and each alternate year thereafter.
(e)From 5.00pm on 24 December 2009 until 5.00pm on 25 December 2009 and each alternate year thereafter.
(f)Such further or other times as agreed.
That the Wife spending time with the child in accordance with paragraph 3 hereof is conditional upon:-
The Wife not consuming alcohol 24 hours prior to any period that she spends with the child and throughout the period that the child is in her care.
That the child sleeps at the home of his maternal Grandmother unless alternative arrangements are agreed between the parties, in writing, seven days prior to such arrangements taking place.
That the child not be a passenger in a motor vehicle which the Wife is driving.
That the Wife spending time with the child is conditional upon the Wife’s mother or father being in substantial attendance during the periods that the child spends time with the Wife.
The Wife attending regular Alcoholics Anonymous meetings.
The Wife attending regular counselling at K Community Centre until such time as a counsellor advises her attendance is not necessary.
That the Wife or the maternal grandmother collect the child from school at the commencement of each weekend the child is to spend time with the Wife and the Husband collect the child from the maternal Grandmother’s residence at the conclusion of each weekend the child spends time with the Wife.
That the child be at liberty to contact either parent by telephone when he is in the care of the other parent.
That the Wife’s time with the child be suspended as follows:-
From 9.00am until 12.00pm on … July being the child’s birthday.
From 9.00am until 6.30pm on Father’s Day.
That the Independent Children’s Lawyer shall serve a copy of these Orders on the Wife as soon as practicable, and thereafter be discharged.
A transcript of the Reasons for Judgment given this day shall be prepared and retained on the Court file.
That the Father’s solicitors shall prepare the Orders within 7 days.
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 the 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.
IT IS NOTED that publication of this judgment under the pseudonym Martin & Morris is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 3339 of 2006
| MS MARTIN |
Applicant
And
| MR MORRIS |
Respondent
REASONS FOR JUDGMENT
This case is about a 10 year old child. He has lived with his father since his parents separated in September 2006. He is a happy healthy little boy who is apparently thriving in every respect.
Sadly the child’s mother has not appeared at court today. In fact she has not participated in proceedings for some months. When the matter came before me to be called over on 16 May this year, she failed to appear. I made orders with which the Independent Children's Lawyer has complied, for the service on the mother at her Notice of Address for Service address, of a letter advising her of the return to court today.
The father filed an amended response on 12 June, and on the same day it was properly forwarded by the father's solicitor to the mother, again at her address for service, an address at which it is known she is living, because that is where the child goes.
I have the benefit of Mr A’s report. Unfortunately the mother did not participate in its preparation. Nevertheless, it shows that the child is very happy living with his father, very worried about his mother's drinking problem, and comfortable at the moment seeing his mother just once per month, as well as comfortable that when he sees his mother his maternal grandmother is involved and he has a fond and close relationship with her.
I have heard the father on oath today. I have read his questionnaire. He is a consultant. His job means that he is able to be home before the child goes to school and most of the time he is available after school or makes very appropriate arrangements for the child’s care. They live close to the child’s school. The child is doing well at school, gets on well with his friends and has healthy normal sporting activities and plays with his friends outside school hours.
According to his father the hcild is comfortable with the arrangement in seeing his mother. He wanted the time reduced to once per month because on three different visits the child believed the mother had been using alcohol and on the last occasion he was actually quite scared and ended up tipping the alcohol down the sink.
I am satisfied in all the circumstances that considering the factors in section 60CC of the Family Law Act, it is in the child’s best interests at this point to be living primarily with his father and to be spending the time with his mother in accordance with the father's response, and in accordance with the various conditions about her alcohol consumption as set out in that response.
The father seeks an order that the parents retain the sole parental responsibility for the decisions in relation to the child. That is also appropriate.
I am going to make orders in accordance with the father's Amended Response filed 12 June 2008, save that paragraph 3(e) shall be amended to read, "During school terms and during school holidays from after school on Friday or 3 pm on a non-school day, until 6.30 pm on Sunday commencing this day and on every fourth weekend thereafter."
The usual section 62B and section 65DA(2) orders will be added, as well as an order that the Independent Children's Lawyer shall serve a copy of these orders on the mother as soon as practicable, and shall thereafter be discharged. I shall also order that a transcript of my reasons for judgment given this day shall be prepared and retained on the court file.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau
Associate:
Date: 20 June 2008
Key Legal Topics
Areas of Law
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Family Law
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