McDonald and Fosci

[2011] FamCA 1003

FAMILY COURT OF AUSTRALIA

MCDONALD & FOSCI [2011] FamCA 1003

FAMILY LAW – CHILDREN - With whom a child spends time - interim

Family Law Act 1975 (Cth)
APPLICANT:	Mr McDonald

RESPONDENT: Ms Fosci

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: HBC 484 of 2009

DATE DELIVERED: 7 December 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Phelan

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Felkel

SOLICITOR FOR THE RESPONDENT: Vernon Da Gama & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Septimus Jones & Lee

Orders

1. That all outstanding applications are adjourned to a date to be fixed.

2. That judgment is reserved.

3. That until further order, the mother and the father have equal shared parental responsibility of the child of their relationship.

4. That until further order, the child B spent time with the father on each weekend from 12 noon on Saturday until 12 noon on Sunday commencing on 10 December 2011.

5. That until further order, the child spend time with the father on each Tuesday from 10.00am until 3.00pm.

6. That all changeovers occur at the Suburb C library.

7. That 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 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 Mc Donald & Fosci has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: HBC 484 of 2009

Mr McDonald

Applicant

And

Ms Fosci

Respondent

REASONS FOR JUDGMENT

1. I propose to reserve judgment in this matter and to otherwise adjourn the matter to a date to be fixed.  But I do, however, propose to make two orders today.  These orders are so abundantly clear from the evidence that I will give some very simple, logical reasons now.  The first is in relation to equal shared parental responsibility.  There is no evidence, in my view, to justify the rebuttal of the presumption.  And even if there was, the court still has power to make an equal shared parental responsibility order.  There is no basis upon which I could decide, in this case, that Mr McDonald ought not to have the same responsibilities for decision making in relation to B, as does the mother. So the first order is easily justifiable on the evidence. 

2. The second order relates to some time immediately.  The judgment that I propose to prepare will take some time because the evidence needs to be considered but also, I need to consider the long term.  The mother’s position is rather simple and straight forward and it is all predicated on the basis that she wants to go to Tasmania.  On any view of the evidence, the move to Tasmania cannot be supported by the evidence, both from the parties themselves, and from the expert.  But that then gives rise to the question of what is the appropriate order, until the judgment is handed down. 

3. There seems to me to be no logical reason why on the evidence – particularly of the family consultant – that overnight time between the child and his father ought not start immediately.  The question is when the overnight should start, and whether it is this weekend or the weekend after.  But I propose to make an order that it be from 12 noon on Saturday to 12 noon on the following day;  the Sunday.  Now, whilst the mother’s position is that the Christmas day this year be from only 10 am to 3 pm, I will only need to make that order depending upon whether the overnight starts.  Because if it starts this particular weekend, then two weekends later is, in fact, Christmas Eve and Christmas Day.

RECORDED  :  NOT TRANSCRIBED

1. And I do propose to make it each weekend, but there is no logical reason why it should not start this weekend, and I can reconsider that position as to whether it is to be every weekend or every alternate weekend in the final judgment.  But at this stage, the concern of the mother about only Christmas day being 10 until 3, does not fit comfortably at all with the evidence and on that basis, I see no reason why it should start this weekend.  The Tuesdays should start next Tuesday and again, I see no reason why until further order, it ought not be from 10 until 3 each Tuesday.  I will reconsider that position also, in the final judgment.  So I will make orders in those terms.

RECORDED  :  NOT TRANSCRIBED. 

1. All right.  Those orders will be published this afternoon, but they’re operative immediately, and other judgments otherwise reserved.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 December 2011.

Associate:

Date:  6 January 2012