McBerry and Coates

[2007] FamCA 1038

FAMILY COURT OF AUSTRALIA

MCBERRY & COATES [2007] FamCA 1038

FAMILY LAW – CHILDREN – agreement – dispute midweek spending time with – gave father more time consistent with principles and objects

APPLICANT: Ms McBerry

RESPONDENT: Mr Coates

FILE NUMBER: BRF 2881 of 2005

DATE DELIVERED: 26 June 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 26 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGregor

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

COUNSEL FOR THE RESPONDENT: Mr Slade-Jones

SOLICITOR FOR THE RESPONDENT: Aylward Game

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Brasch

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Harrington Family Lawyers

Orders

1. By consent, orders be made in accordance with the Minutes of Orders attached hereto.

1. Pursuant to s65DA(2) and s62B, 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.

MINUTES OF ORDERS

IT IS ORDERED BY CONSENT THAT:

1. The children […] born […] January 1997 and […] born […] December 2000 live with the mother.

Parental Responsibility

2. The parents shall have equal shared parental responsibility and for that purpose:
1. the Mother shall give the Father at least 2 months notice of any proposed decision about any major long‑term issue in relation to the children’s health or education AND the Father, should he choose to oppose such a decision, shall file in the court an application opposing the Mother’s proposed decision within 28 days of being served with the Mother’s proposed decision AND IN DEFAULT of the Father filing such an opposition, the Mother’s proposed decision shall become absolute.
2. the children shall, when ever possible and when ever a medical issues arises, attend the [V] Medical Surgery.
3. the parents and each of them are to follow the advice of the medical practitioners at the [V] Medical Surgery (or any other medical practitioner should the children for any reason attend another practice).
4. each parent is to inform the other as soon as is practicable of any major medical problems, or accidents involving the children including details of healthcare professionals, and healthcare facilities, providing the necessary healthcare to the other parent.

Time with the Father

3. The children shall spend time with the Father at all times agreed between the parents and in default of such agreement as follows:
1. Each alternative weekend from 4.00 pm Friday to 4.00 pm Sunday commencing the first week following the making of these orders. Should such time fall on a long weekend that includes a Friday or a Monday or both, or on the preceding Friday or the following Monday is a pupil free day, then the period shall be extended to commence at 4.00 pm on the Thursday and/or conclude at 4.00 pm on the Monday as the case may be. Such time to be suspended during school holidays.

IT IS FURTHER ORDERED THAT:
IT IS FURTHER ORDERED BY CONSENT THAT:

2. Weekly from 4.00 pm Wednesday overnight until school on Thursdays. In this case the Father is to collect the children from outside the Mother’s residence at the commencement of such time and the Father shall deliver the children to school at the conclusion of such time. Such time to be suspended during school holidays.

3. Save for the Christmas gazetted school and public holidays, for the first half of all gazetted school and public holidays in odd years and the second half all gazetted school and public holidays in even years.

d.For the first week and each alternate week of the Christmas school holidays during 2007/2008 and each alternate year thereafter to commence at 4.00 pm of the last Friday of term.

e.For the second week and each alternate week of the Christmas school holidays during 2008/2009 and each alternate year thereafter to conclude at 4.00 pm of the following Friday.

f.If Fathers Day does not fall during a period when the children are spending time with the Father, then the Father shall spend time with the children from 4.00 pm on the day prior to Fathers Day to 4:00 pm on Fathers Day.

g.If Mothers Day falls during a period when the children are spending time with the Father, then the Mother shall spend time with the children from 4.00 pm on the day prior to Mothers Day to 4:00 pm on Mothers Day.

h.If Christmas Day does not fall during a period referred to in paragraphs 3(d) and (e), the Father shall spend time with the children from 2.00 pm on Christmas day to 4.00 pm on Boxing Day.

i.If Christmas Day falls during a period referred to in paragraphs 3(d) and (e), the Mother shall spend time with the children from 2.00 pm on Christmas day to 4.00 pm on Boxing Day.

4. The Father shall be at liberty to telephone the children at all reasonable times when the children are in the Mother’s care, but not after 8.00 pm.
5. The Mother shall be at liberty to telephone the children at all reasonable times when the children are in the Father’s care, but not after 8.00 pm.
6. The parents shall each ensure that the telephone calls referred to in paragraphs 4 and 5 are made and received in private.

Orders

7. Each parent shall forthwith obtain an EpiPen (or its generic equivalent) for [the older child’s] allergies and keep the same upon their person at all times when [the older child] is in their care.
8. Save as provided otherwise, the Father shall collect the children from outside the Mother’s residence at the commencement of the period that he is to spend time with the children and the Mother shall collect the children from outside the Father’s residence at the conclusion of such periods.
9. The parents shall each ensure that the children:
1. Are bathed or showered every night whilst they are in their care;
2. Presentably dressed on all school mornings;
3. Are in bed by approximately 8.00 pm on a school night; and
4. That the children have their own room (separate from the parent’s room) and that they sleep in their own room and in their own separate beds.
10. Each parent shall keep the other informed of their current residential address and telephone number, and advise of any change in relation to same fourteen (14) days before such change.
11. To aid communications between the Mother and the Father a communications book shall be used to deal with all communications involving the children. The communications book shall be handed over by one parent to the other at each change over. Each parent shall use their best endeavours to keep the other informed of all sporting and other extra curricular activities that the children may be participating in from time to time by appropriate notations in the communications book such that each parent is afforded the opportunity to be able to attend those activities. 
12. If deemed necessary, a sealed copy of this  order presented  to the children’s school, any clubs or associations which they attend and to any health care professionals, shall be authority for them to provide to the Father at his expense:
1. in the case of the children’s school, copies of all school reports, newsletters and any other information the school provides for parents of all children attending the school;
2. in the case of clubs and associations which they attend, to provide to him at his expense copies of all records and details relating to the children; and
3. in the case of the health care professionals to provide to him copies of all records and details relating to the children.
13. Neither parent shall consume alcohol or illicit drugs during, or within twenty four (24) hours prior to, any period of time that the children are to be in their care.
14. Neither parent shall discipline the children by smacking.
15. Neither parent shall denigrate, or allow any member of their family to denigrate, the other parent or a member of their family, to, or in the presence of, the children or a member of their family, and if any person does so in the hearing of the children and a parent, then that parent shall immediately remove the children from the vicinity.

[Mr N]

16. The Mother shall take all reasonable steps (including informing [Ms V N (“Ms V”)] of the same and receiving her consent to the same) to avoid either child coming into contact with [Mr N] without the Mother being present.
17. If the Mother wishes to leave the children or either of them in [Ms V’s] care then the Mother shall inform [Ms V] that the children are not to have any contact with [Mr N] and the Mother shall obtain [Ms V’s] acknowledgement that the children are not to have any contact with [Mr N] before leaving the children in [V’s] care.
18. The Father is restrained from displaying in public or in the presence of the children any signs relating to [Ms V], [Mr N], child molestation, paedophilia or similar matters.

Notation

The Mother shall use her best endeavours to ensure that the children attend school at least fifteen (15) minutes prior to the commencement of the first day of each school year so that the Father has an opportunity to help them to their classrooms.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as McBerry & Coates.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF2881 of 2005

MS MCBERRY

Applicant

And

MR COATES

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. The parties have reached agreement in relation to the vast bulk of the matters in issue and they are to be commended for their efforts in so doing.  The one narrow matter left for determination by the Court relates to the proposals of each of the parties for mid-week contact, with the father proposing that he should have contact to the girls each Wednesday from 4 pm until commencement of school Thursday and the mother proposes that it should be each alternate Wednesday.

2. In her material, the mother raised entirely legitimate concerns about the burden that arrangement imposed upon her in terms of transport on Wednesdays and Thursdays.  Under the proposals, the father is to assume that responsibility.  The parties reside approximately one hour apart.

3. In relation to this narrow issue, the mother raises again entirely legitimate considerations relating to the disruptions and burdens imposed upon the children being required to undertake a one hour trip with their father at the end of, and commencement of, two days in the week.  In support of the father's contention, his counsel brought the Court's attention to the recent amendments and the broad philosophies which underpin those amendments.

4. The orders reflect what appear to be the current state of the children's wishes, which has been to spend more time with the father.  Of course, that has been recognised by the concessions made by the mother, as it were, in terms of extensions to existing contact arrangements.

5. This is a narrow and finely balanced point. At the end of the day, when there is little to separate the claims of the parties, I am persuaded that I should have proper regard to the spirit behind the recent amendments to the Family Law Act which require the Court to pay more than lip service to the desirability of making orders which best meet the broad objectives to see children having meaningful time and meaningful relationships with each of their parents and orders which provide that each of the parents has the opportunity for regular involvement in children's day-to-day lives, including their schooling.

6. I suspect that the arrangement the father proposes may well become more problematic as the children get older and have other school and educational commitments and personal commitments and homework and the like, but at the present time, they are in grade five, and respectfully and from some experience with transporting a large number of children myself, I do appreciate that travels in the car provide parents and children with an opportunity where the children are necessarily a captive audience, and you can often use that time as quality time to engage in discussion with your children when they are keen to tell you about the activities of the day and perhaps what is ahead.  Although an hour in a car can, in some ways, be burdensome, it can also be productive time and an opportunity for children and parents to enjoy one another's company without the distractions of TVs and toys and other kids and the like. 

7. So at this age, on balance, being mindful and respectful of the mother's legitimate reservations about the proposal, I err in favour of the father's proposals and make a provision for contact each Wednesday.

8. Otherwise, I propose to make the orders.  Given the progress that has been made in a sense between the parties, I hope and expect that these arrangements will become more and more fluid to meet the children's needs as they grow older, but at least the parties know that if they are unable to reach agreement about any variations of these terms, they have these defined obligations which properly define their rights and duties, as it were, in the absence of such agreement.

9. I also thank the legal representatives for their efforts and happily make orders in terms of the draft orders. 

   RECORDED  :  NOT TRANSCRIBED

10. I make orders in those terms.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: