MCDONALD & LINTON

[2013] FamCA 337

FAMILY COURT OF AUSTRALIA

MCDONALD & LINTON [2013] FamCA 337

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT: Ms McDonald

RESPONDENT: Mr Linton

INDEPENDENT CHILDREN’S LAWYER: Stephen W Bell & Associates

FILE NUMBER: SYC 1846 of 2010

DATE DELIVERED: 20 February 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 18-20 February 2013

REPRESENTATION

APPLICANT: Ms McDonald (via video link from Court 6A)

RESPONDENT: Mr Linton

INDEPENDENT CHILDREN’S LAWYER: Ms Snelling

Orders

1. By consent, the parties have equal shared parental responsibility for the child

   
   

   BB born … June 1999, (“the child”).

2. The child live with the parties as follows:

   (a)

   with the father from after school Friday to the commencement of school the following Friday and each alternate Friday thereafter commencing

   
   

   1 March 2013

   (b)with the mother from after school Friday to the commencement of school the following Friday and each alternate week thereafter commencing 22 February 2013.

3. By consent, with the exception of the 2013/2014 Christmas school holidays the child will spend half of each school holiday period with each party by continuation of the alternate weeks pursuant to Order 2.

4. By consent, in the event either party wishes to take the child on an overseas or interstate holiday during the shorter term school holidays then that party will be entitled to have the whole of the holiday period and the other party will have the whole of the following school holiday period, on not more than on one occasion each year by written agreement between the parties and for that purpose the party intending to travel will provide the other party with written notice of their intention and details of the itinerary at least 8 weeks prior to the anticipated holiday.

5. For the Christmas holidays 2013/2014 the child will travel to City HH, Country JJ with the mother from 8 December 2013 to 17 January 2014 and the mother will provide the father with a copy of the child’s ticket and itinerary not less than

   
   

   28 days before departure.

6. By consent, on each parent’s birthday and on Mother’s Day and Father’s Day the child will live with the parent with whom she is to celebrate from 7.00 pm the night before the celebration to 9.00 pm on the following day.

7. By consent, on the child’s birthday the child will spend time with the parent with whom she is not living on that day from 1.00 pm to noon the following day.

8. By consent, each party will facilitate and not prohibit the child from communicating with the other party.

9. By consent, communications between the parties should be by email except in an emergency when an SMS message will suffice and these are to be limited to parenting issues.

10. By consent, each of the parties will notify the other party of any serious injury or illness requiring specialist medical treatment or hospitalisation suffered by the child whilst in the care of that party:

    (a)       including details of the injury or illness

    (b)       names of the treating specialist and hospital

    (c)       diagnosis, treatment and prognosis if known.

    The treating professional will notify the child’s treating general practitioner/s of the treatment undertaken.

11. By consent, in the event the mother takes the child to a different general practitioner then the child’s practitioners share the child’s records with each other.

12. By consent, each party will organise their own copies of school reports, school photos and notices of school events and for this purpose the parties will ensure the mother’s details are entered on the child’s file at the school.

13. By consent, the parties obtain individual counselling for the child from a counsellor at Unifam at the request of the child.

14. By consent, changeovers for the child between parental households which do not occur at school take place at the corner of DD and EE Streets, Suburb FF when the child is returned to live with the mother and at the parking area at the father’s residence when the child is returned to live with the father or as otherwise agreed in writing between the parties.

15. By consent, the mother will provide a formal Undertaking to the Court which is annexure “A” to these Orders in terms of the recommendation of the Court appointed expert.

16. By consent, the party holding the child’s passport will provide the passport to the other party when possible six weeks in advance of the travel date or otherwise should both parents be travelling with the child in the same holiday period as soon as possible.

17. By consent, if the parents are deadlocked on a matter relating to shared parenting responsibility that the parties agree to a mediation process which incorporates the mediator having separate consultation with the child in addition to the parents.

18. Pursuant to Section 65DA(2) and Section 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.

19. All material produced in response to subpoenas is to be returned to the party who produced it.

20. The matter is removed for the list of Active Pending Cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McDonald & Linton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1846 of 2010

Ms McDonald

Applicant/mother

And

Mr Linton

Respondent/father

And

Stephen W Bell & Associates

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Before the Court is an application by the parents of a child for orders in relation to the child’s parenting.  Whilst the issues between the parties at the commencement of the proceedings seemed large, as a result of discussions that have been had with the assistance of the Independent Children’s Lawyer, a draft minute of orders has been produced.  That is before the Court and I mark it Exhibit “X”.  The parties are, by and large, agreed and propose that save for the matters in issue I make Orders by consent as set out in the draft.  There are two issues which remain in dispute and I will deal with those shortly.

RECORDED  :  NOT TRANSCRIBED

1. The terms of settlement produced by the Independent Children’s Lawyer, or the terms of proposed order, as I say, are largely agreed.  Annexed to that order is an undertaking by the mother, which she has confirmed on her oath and to which the father agrees as being an appropriate way to deal with that issue.  The remaining issues are when the agreed time to be spent with the mother which comprises a change to the current orders should commence.  Otherwise, there seems to be no difficulty for either of the mother or the father that the period of time during the school term should be calculated on a week-about basis and that the pick up and delivery should be from school to school and that the time should be from Friday to Friday.

2. The father, for his part, seeks some further time before the matter is implemented and says that he or the child needs time to adjust.  In my view, the child will not need time to adjust because of the fact that she has had lengthy periods of time with her mother and that there has been already a period of time spent with the mother on a spend time basis.  In the circumstances, it’s my view that the recommendation of Dr GG in his oral evidence given today that the time should commence immediately should be adopted.

ORDERS DELIVERED

RECORDED  :  NOT TRANSCRIBED

1. The second issue in dispute arising is that the orders proposed to be made include orders in relation to the time to be spent with the mother during the Christmas holiday school period.  The mother’s father and her mother are currently resident in City HH, Country JJ.  The father is employed in Country JJ.  He has an appointment which is for a period of three years. Dr GG has said in his report that the mother’s mother and father are significant and important people in the child’s life.  That is not to say that there aren’t other significant and perhaps even equally significant and important people in the child’s life and the father has pointed to such persons including his parents and his extended family.  However, the child will only have the opportunity, the evidence is, to go overseas to see her maternal grandparents probably on one occasion in each year having regard to the cost of such a trip.

2. In order to make that trip worthwhile, the mother asks that there be an extended period of the holidays made available to her.  Enquiries seem to indicate that the child could leave school, having completed the majority of her work, on 8 December.  It is proposed, by the Independent Children’s Lawyer, that the time with the mother should run from 8 December 2013 to 17 January 2014, and that, upon return, the child spend the balance of the time with the father of those summer school holidays.  The father says that he thinks it’s “not fair”.  I can understand his view in relation to that but, of course, this case is not about what’s “fair” as between the parents.  Unfortunately, sometimes it seems that that is more about their needs than this child’s needs.

3. It seems to me that having been deprived of the company of her maternal grandparents, who are said to be significant people in the child’s life, that they ought to have the opportunity of spending time with the child but also, and more importantly, of course, the child should have the opportunity of spending time with them, and taking advantage of the cultural and educational benefit of an overseas trip at that time.  The father had proposed that he take the child to Pacific Islands and, indeed, that would still be open to him on the order that I propose to make but for a lesser period of time.  The issue is not entirely an easy one but it seems to me that for one occasion, and one occasion only, there should be a departure from the concept of equal sharing for summer school holidays.

ORDERS DELIVERED

1. Having regard to those rulings, and for those reasons, and having determined that those orders, in their entirety, are, in my view, ones which serve the best interests of this child, I make orders noting the undertaking given by the mother in accordance with the document initialled by me and placed with the papers.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 20 February 2013.

Associate: 

Date:  10 May 2013