Martindale and Grainger

[2007] FamCA 242

FAMILY COURT OF AUSTRALIA

MARTINDALE & GRAINGER [2007] FamCA 242

FAMILY LAW - CHILDREN – Time with father - Interim

Family Law Act, 1975

FATHER: Mr Martindale

MOTHER: Ms Grainger

INDEPENDENT CHILDREN’S LAWYER: Independent children’s lawyer

FILE NUMBER: MLF 111 of 2005

DATE DELIVERED: 26 February 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Brown J

HEARING DATE: 26 February, 2007

REPRESENTATION

THE FATHER: In person

THE MOTHER: In person

INDEPENDENT CHILDREN’S LAWYER Ms Rama, Harris Lieberman

Orders

1. That the child, a son, born in April, 1997 live with the mother.

1. That the child spend time with the father as follows :

   (a)from 10:00 am. to 5:00 pm. on 10 March, 2007  PROVIDED THAT  such contact be exercised at W and the child shall be collected from and returned to the home of the mother’s sister, Ms T;

   (b)from 10:00 am. Saturday until 5:00 pm. Sunday on the following weekends :

   (i)14 April, 2007;

   (ii)5 May, 2007;

   (iii)2 June, 2007;

   (iv)30 June, 2007;

   (v)25 August, 2007;

   (vi)22 September, 2007;

   (vii)20 October, 2007;

   (viii)17 November, 2007;

   (ix)15 December, 2007;

   (c) from 10:00 am. Friday 13 July, 2007 until 5:00 pm. Saturday 14 July, 2007;

   (d)at any other times as the parties agree.

1. That subject to the child's wishes, he be able to stay an “extra” night with the father on the weekends of 14 April and 13 July, 2007 with the visit to conclude at 5:00 pm.

IT IS FURTHER ORDERED

1. That the father collect the child from the home of the mother’s sister, Ms T, at the commencement of each period of time with him pursuant to these orders and return him to the home of Ms T at the conclusion of each period of time with him pursuant to these orders.

IT IS FURTHER ORDERED BY CONSENT

1. That in the event the father is unable to spend time with the child as provided for in paragraph (2) herein, the father shall provide the mother with no less than 48 hours notice of his inability to attend.

1. That the mother provide the father, as soon as possible, with a copy of the child’s rugby draw detailing his matches, including the time the match commences and the sporting ground where the match is to be played.

1. That during the periods that the child spends time with the father as provided for in paragraph (2)(b) and (c) herein, the father shall ensure the child’s attendance at all sporting events that he is required to participate in and otherwise, the father be at liberty to spend time with the child in A.

1. That during periods when the child spends time with the father pursuant to paragraph (2) herein, the father shall :

   (a)not work;

   (b)be in substantial attendance;

   (c)     refrain from consuming alcohol;  and
   IT IS FURTHER ORDERED

   (d)stay overnight with the child at the home of either the paternal grandmother in A or the home of his sister in A.

IT IS FURTHER ORDERED BY CONSENT

1. That both parties be and are hereby restrained from discussing the following with the child :

   (a)the current proceedings;

   (b)child support matters;

   (c) any changes to the arrangements provided for in paragraph (2) herein;

   (d)The child’s attendances upon and discussions with the school counsellor, Ms N, unless the child initiates the discussion or such discussion is recommended by Ms N.

1. That both parties be and are hereby restrained from criticising or denigrating the other to or in the presence or hearing of the child.

1. That the mother shall ensure that when the child spends time with the father on 10 March, 2007 as provided for in paragraph (2)(a) herein, that the child has the mobile telephone purchased for him by the father with him and during this visit, the father shall do all such things as are necessary, at his expense, to have the mobile telephone reconnected and credit added to the mobile telephone.

1. That on each occasion when the child spends time with the father as provided for in paragraph (2)(b) and (c) herein :

   (a)the mother shall ensure the child has with him the mobile telephone purchased for him by the father;

   (b)the father shall check the amount of credit remaining on the mobile telephone to ensure that there is sufficient credit to enable the child to receive the phone calls referred to in paragraphs (13) and (14) herein and if there is not enough credit remaining the father shall purchase sufficient credit to enable the child to receive those calls until he next spends time with him pursuant to these orders.

1. That the father shall communicate with the child each Tuesday and Thursday by telephone between 6:00 pm. and 7:30 pm., such calls to be made to the child’s mobile telephone and the mother shall ensure that the mobile telephone is switched on during this period. 

1. That during periods that the child spends time with the father pursuant to these orders, the mother shall be at liberty to telephone the child at 7:30 pm. on the Saturday night, such call to be made to the child’s mobile telephone and the father shall ensure that the child’s mobile telephone is switched on at this time.

1. That the father shall deposit the sum of $1,058 into the child’s bank account with the Commonwealth Bank (Account No. …) no later than 31 July, 2007, being repayment of the monies withdrawn by the father from the child’s Dollarmite account.

IT IS FURTHER ORDERED

1. That an updated Family Report be prepared with a view to this matter being listed in the August 2007 judicial circuit and the applications for parenting orders be otherwise adjourned to a pre-trial conference on 2 August, 2007 at 9:30 am. and the mother have leave to attend by telephone. 

1. That pursuant to s.65DA(2) and s.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 these particulars are included in these orders.

2. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor appearing as counsel.

AND THE COURT NOTES

1. That the periods of time set out in paragraph (2)(b) extend past the August circuit but the parties understand that, subject to any order of the trial judge, their applications for final orders are to be determined during the August circuit, if practicable.

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 111 of 2005

MR MARTINDALE

Father

And

MS GRAINGER

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I delivered a judgment in this matter during the last circuit and will not repeat the background, which is set out in that judgment.  I have read the affidavits filed since then and this morning have been given a copy of a report of Ms N, the Centrecare counsellor who has worked with the parties’ son who will be 10 in April. 

1. It is clear that the child has struggled to integrate his relationship with his father into his life.  To his mother’s credit, and despite some justified scepticism, she is prepared to continue the attempts to foster a constructive relationship between the child and his father.  The Family Law Act 1975 stresses the importance to a child of having a meaningful relationship with both parents and the importance of both parents playing a meaningful role in children's lives, so long as that is consistent with his or her best interests.

1. Two issues remain for determination today.  The parties have agreed on a number of orders.  An updated report by Ms D will be of use.  When that is available, the judge who is here, whether me or someone else, will need to make a final determination, unless the parties can agree to final orders.  Of course, that will depend on how the child is progressing emotionally.  But I doubt it would be in the child’s interests to leave him enmeshed in litigation past that point. 

1. The first issue is changeovers, a question of cost as well as time and convenience.  The father’s position is that the parties should share the travel between A (where he lives) and W (where the child lives).  He submits that is the “fair” solution, whether one does all the travel on alternate weekends, or one drives one way and one the other, or whether they meet halfway.  The mother submits that she has borne the significant brunt of parenting of the child for a very long time.  Initially, the father denied paternity, a denial later abandoned.  Child support paid by the father is minimal.  For financial reasons, and to give her some time to catch up on the myriad obligations of a single mother who is in full-time paid work, the father should do the driving.  The independent children's lawyer does not have a strong view on the issue.

1. I stress that a decision of this sort is not about fairness between parties.  The Court must focus on the child’s interests, not the parents’ wishes and desires.  In my judgment, that focus requires the Court to consider how best to help the child understand his relatively new relationship with his father.  A real issue in any trial will be the father’s commitment to that relationship.  He can demonstrate that commitment to the child by collecting and returning him.  When he is in W he can choose to be part of the child’s life there;  an illustration would be watching him play sport.  In the interim he will only be required to travel once a month, which is not unduly onerous to someone in his circumstances.  He is a single man and neither family obligations nor work commitments preclude that travel. 

1. The second question is where contact is to take place.  This is a much more subtle issue.  The father lives with his elderly mother in A.  He wants to spend the weekends with the child at his sister’s home, in A.  It is probable the mother maintains some lingering hurt and unhappiness about the father’s sister failure to acknowledge the child.  This was in stark contrast to the father’s mother, who was warm and welcoming to her grandson, notwithstanding her own son’s denial of paternity.  To the mother’s credit, she has maintained the child’s relationship with his paternal grandmother and it is an important relationship.  Ms D met the father’s sister when preparing her report.  She made no adverse comments about her.  At that time, the child spoke positively about his aunt.

1. The Court must be cautious about imposing too many conditions on the time parents spend with children.  If conditions are essential to ensure a child’s physical or emotional safety, they must be ordered.  But too many constraints can impact adversely on the time a child spends with a parent.  I do stress the importance of the child continuing to spend time with his grandmother.  That may be a matter the Court considers, during a trial.  She is not young.  The child can only benefit from that continuing relationship.  While that valuable relationship should be fostered, I do not propose to order that the father spend his time with the child at one specified place.  Having regard to the paternal grandmother’s age and the facilities and family at his sister’s home, I do not think he should be constrained in that way.  The order will provide that the child can stay at either home.  

I certify that the preceding
6 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MARTINDALE & GRAINGER