Maurice and Barry

[2018] FCCA 1188

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAURICE & BARRY [2018] FCCA 1188

Catchwords:
FAMILY LAW – Parenting – IVF conception – same sex relationship – interim orders for shared parenting.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MS MAURICE

Respondent: MS BARRY

File Number: CAC 996 of 2010

Judgment of: Judge Egan

Hearing date: 8 May 2018

Date of Last Submission: 8 May 2018

Delivered at: Brisbane

Delivered on: 8 May 2018

REPRESENTATION

Counsel for the Applicant: Mr Campton SC

Solicitors for the Applicant: Mills Oakley

Counsel for the Respondent: Mr Selfridge

Solicitors for the Respondent: Marino Lawyers

ORDERS

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

1. That the Orders made 28 March 2018 and 18 April 2018 be discharged, including the provision of periodic cash amounts and use of a credit card.

2. That the Applicant pay by way of partial property settlement to the Respondent directly to the nominated bank account of the Respondent the sum of $75,000.00 on or before 11 May 2018.

3. That the Court note that the monies paid pursuant to Order 2 hereof will be drawn by the Applicant from the mortgage facility secured upon Property A.

4. That the interim financial relief as sought by the Respondent in her Response to Initiating Application filed 3 May 2018 otherwise be withdrawn and dismissed.

AND THE COURT ORDERS UNTIL FURTHER ORDERED:

1. That the parties have equal shared parental responsibility for the children [W] born 2007, [X] born 2009, [Y] born 2012 and [Z] born 2014.

2. That the said children live with the applicant as follows:

   (a)During the school term, each fortnight from the commencement of school on Friday until the commencement of school on the following Thursday, the first such occasion to occur 11 May 2018, noting school commences at 8.40am;

   (b)During the School A school holidays, for the first half in years ending in an odd number and for the second half in years ending in an even number.

3. That the said children live with the Respondent at all other times.

4. That for the purpose of Orders 6(b) and 7 hereof:

   (a)The first half of school holiday periods shall commence at the conclusion of school on the last day of the school term and conclude at 4.30pm on the day calculated to fall half way through that school holiday period;

   (b)The second half of school holiday periods shall commence at 4.30pm on the day calculated to fall half way through the school holiday period and shall conclude at the commencement of school on the first day of the next school term;

   (c)In the event there is an uneven number of nights in a school holiday period then the children shall spend the additional night with the Respondent in years ending in an even number and with the Applicant in years ending in an odd number

5. That each party have exclusive use and occupation, as against the other, of the situated property at Property A during the periods that the children live with them pursuant to these Orders, and each party shall respectively vacate Property A at or before 9.30am on the day the children commence their time with the other party.

6. That each party be restrained by injunction from being upon or about the said Property A during times that the children are in the care of the other parent pursuant to these Orders.

7. That in the event that changeover is not to occur at the children’s school pursuant to these Orders, then the parent who is not in occupation of Property A in accordance with Order 9 hereof shall collect the children from, and return the children to, Property A at the commencement and conclusion of their time with the children respectively and shall ensure they attend for changeover at the stipulated time.

8. That each party be restrained from attending a school or extracurricular activity for the children while they are in the care of the other save to attend an event that parents are ordinarily invited to attend, such as parent teacher nights, school concerts and scheduled sporting fixtures, but not to attend events such as sports training or to attend at school during school hours at or about the commencement or conclusion of school.

9. That within three (3) days of the making of this Order, the solicitor for the Applicant provide the names of 3 persons, and the Respondent shall select one, to be appointed as the Court parenting expert to prepare a report as to s 60CC factors, and

   (a)In the first instance, the applicant meet the costs of the preparation of the report and the Respondent reimburse the applicant for half that cost from any final property order made in her favour.

   (b)The Court note that the expert will attend on the parties and the children within the next 8 weeks.

   (c)That the solicitors for the applicant provide a draft letter of instruction to the expert to the solicitors for the respondent within seven (7) days, and the solicitors shall thereafter confer and settle the said letter of instruction fourteen (14) days thereafter.

10. That the expert be permitted to photocopy and examine all documents produced in compliance with subpoena in these proceedings.

11. That the matter be adjourned for trial callover on a date to be fixed.

12. That each party do all things as are necessary to maintain and preserve Property A and its contents during periods they occupy it pursuant to these Orders.

13. That the children shall spend Mother’s Day between 10.00am and 3.00pm with the Respondent, and Father’s Day between 10.00am and 3.00pm with the Applicant.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

CAC 996 of 2010

MS MAURICE

Applicant

And

MS BARRY

Respondent

REASONS FOR JUDGMENT

1. I have before me an application for interim parenting orders. In this matter, the parties separated on or about 12 February 2018.  They had been living in a de facto relationship for about 16 years.  Both parties, as mothers of the children, are noted as parents on each of the children’s birth certificates.  The children were born by way of In Vitro Fertilisation (IVF) technology. The children are as follows:

   a)[W], born 2007. She is eleven (11) years of age.

   b)[X] born 2009. He is nine (9) years of age.

   c)[Y] born 2012. She is aged six (6) years of age.

   d)[Z] born 2014. She is four (4) years of age.

2. The Applicant in these proceedings runs a (omitted) business in partnership with another person. It is acknowledged between the parties that she was the primary income earner during the relationship and that the Respondent was the person who did not work but who primarily devoted her time to the raising of the four (4) children.

3. To the extent that it is relevant, I accept that the Respondent was the primary caregiver in relation to the children, albeit that in this particular case there has been a great deal of interaction between the Applicant and the children of the relationship which ought to be acknowledged.

4. Having separated on 12 February 2018, the situation in terms of time being spent by the children with the respective parties has been almost equal. That being said, due to some court scheduling issues, it might be seen that the Respondent has had more of the care of the children than the Applicant since separation. I don’t consider such fact to be a significant one in terms of the amount of time that the children should spend with either parent pending the final hearing and determination of issues of parenting down the track.

5. Much of the material that has been filed on behalf of each of the parties is the subject of dispute. There cannot be, on an interim hearing basis, a resolution of all of the matters in dispute. What I do note, from the evidence which has been filed and read today by Counsel retained on behalf of each of the parties, is that each of the parties has, on occasion, acted contrary to the nurturing of the best possible environment for not only themselves but for the children of the relationship. Each of them has unilaterally failed to inform the other about arrangements which each of them has made relating to time spent with the children and such instances are, in my view, regrettable. Each parent should of course keep the other informed at all times of their relevant movements and should not make any unilateral arrangements which are contrary to either the spirit of understandings reached between them or contrary to the spirit implicit in either of them exercising their rights pursuant to a court order. 

6. On an interim basis, it is important to recognise that the Family Law Act 1975 (“the Act”) provides that orders ought to be made which are in the best interests of the child or children. In this particular case, I am not satisfied that there are any risk factors that militate either in favour of one party or against the other. I have no doubt that each of the parties love the children of the relationship and that they will, in the future, act in their best interests. I am also mindful of the principle underlying the objects of the Act which foster equal shared parental responsibility in relation to the care of the children.

7. Bearing all those matters in mind, but at the same time recognising that the youngest child is aged four (4) and that the Respondent has been the primary carer for the children in a physical and nurturing sense since each of their births, I intend to order that until further order, the children spend time between the parties on an eight (8) day, six (6) day apportionment, the Respondent to have the care of the children for eight (8) days and the Applicant to have the care of the children for six (6) days.

8. The changeover periods for the purpose of my order are that this coming Friday the children will have time with the Applicant for six (6) consecutive nights and thereafter with the Respondent for eight (8) consecutive nights until further order. As indicated in argument, upon the falling of school holidays, each party is to have the benefit of half of each school holiday. On the occasions of the children spending time with each respective parent, that time will be spent at the property situated at Property A in the State of Queensland.

9. I also order that during any such time the party not entitled to have such time shall not be present upon, in or about such property.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 15 May 2018