McLORY and McLORY (No 2)

[2010] FamCA 870

FAMILY COURT OF AUSTRALIA

MCLORY & MCLORY (NO. 2) [2010] FamCA 870

FAMILY LAW – CHILDREN – Trial adjourned part heard – Interim orders

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms McLory

RESPONDENT: Mr McLory

INDEPENDENT CHILDREN’S LAWYER Mr Emerson

FILE NUMBER: BRC 8082 of 2008

DATE DELIVERED: 1 September 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 1 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sara of Counsel

SOLICITOR FOR THE APPLICANT: BM Law

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Martin of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Emerson Family Law

Orders

IT IS ORDERED THAT

1. A transcript of the proceedings on 30 and 31 August 2010 and 1 September 2010 be provided to the parties at no cost to themselves.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The child born … February 2008 (“the child”) spend time with her father:

   a.from 10.00am on Saturday 4 September 2010 until 5.00pm on Sunday 5 September 2010, and between those times on those days each alternate week thereafter;

   b.from 9.30am until 2.30pm on Tuesday 7 September 2010, Thursday 9 September 2010, and Saturday 11 September 2010, and between those hours on those days in each alternate week thereafter;

   c.from 9.30am until 2.30pm on Wednesday 15 September 2010, and between those hours and on that day each alternate week thereafter.

IT IS FURTHER ORDERED UNTIL FURTHER ORDER THAT

1. For the purpose of the child spending time with her mother on the mother’s birthday, the child shall spend time with her father from 10.00am on Saturday … November 2010 until 5.00pm on Sunday … November 2010, and from 2.30pm until 5.30pm on Saturday … November 2010, and on those dates, that time shall operate in lieu of the sequence ordered at paragraph 2 hereof.

2. For the purpose of the child spending time with her parents at Christmas, the child shall be in her mother’s care until 3.00pm on 25 December 2010, at which time changeover will take place into her father’s care until 5.00pm on 26 December 2010, when she will be returned to the mother’s care, and on those dates, that time shall operate in lieu of the sequence ordered at paragraph 2 hereof.

IT IS FURTHER ORDERED THAT

1. 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 McLory & McLory is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8082 of 2008

MS McLORY

Applicant

And

MR McLORY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is the third day of a trial initially scheduled to take three days in June.  Events occurred in June, through no fault of any party or any legal practitioner, which saw those proceedings needing to be adjourned for a further three days. Those proceedings were due to conclude today. 

2. After the luncheon adjournment today, it became abundantly clear that these proceedings would not conclude.  In those circumstances, the matter has been allocated a day in January 2011 so as to bring these proceedings to a conclusion. 

3. As I indicated to the parties, in the usual course of events, orders would not be made between now and then altering the existing order because that would, at least to a certain extent, predict findings which would be made at the conclusion of the trial.

4. However, in this particular case a number of things have occurred that mark this case as different. First, the mother has, via a document which became Exhibit M1 in the proceedings, altered significantly the orders that she seeks in respect of the time that the child should spend with her father.  Initially, she maintained that the child’s time with the father should be supervised. In the witness box, she spoke of circumstances changing her attitude in that respect she confirmed that her proposals were now those contained in Exhibit M1.  Those proposals see a graduating period of time between the child and her father.

5. Relevant for present purposes, given that the matter will resume in some five months or so, is the first of the graded amounts of time, which provides that the child should spend time with her father from Friday pm until Saturday pm in week 1 and from Saturday am until Sunday pm in week 2. 

6. The existing orders for time have not proceeded smoothly on either party’s account, although each provides different reasons for why that occurred.  In recent times, however, and in particular since contravention proceedings took place before me, time has been occurring essentially in accordance with the orders made on 27 July 2009, which provide that the child spends time with her father from 9.30 am until 1.30 pm on Tuesday, Thursday and Saturday of each alternate week and from 9.30 am until 1.30 pm on Tuesday and Saturday in the other week.

7. Plainly, then, those orders contemplate the child spending time with her father on five occasions each fortnight for four hours at a time.  It will be seen that the proposal of the mother, contained in Exhibit M1, postulates a significant reduction in the frequency of time, but a significant increase in the amount of each period of time, introducing for the first time overnight periods into those time arrangements. 

8. The child was born in February 2008 and it should be observed, therefore, that she is at the current time about two and a half.

9. I am conscious, in seeking to determine these interim issues, of the requirements that the Act places upon me.  In particular, I am cognisant of the fact that, despite these orders being made until further order and contemplating a period of about five months until January of next year, I nevertheless have to apply the Objects, Principles and Considerations mandatorily required by the Act. 

10. I make it plain that I am cognisant of those obligations and have taken into account all of the matters contained within them which I consider to be relevant. 

11. In that context, the issue of harm, as that expression might broadly be described, is the subject of competing assertions and counter-assertions by each of the parties and will undoubtedly be the subject of submissions at the conclusion of these proceedings and, ultimately, findings in the reasons for judgment.

12. For present purposes, however, it must be conceded by the mother that such harm as she perceives as existing in time between the child and the mother is not such that overnight time in each week cannot be contemplated.  Indeed, the fact that she postulates that time must be seen as – if one is to assume, as I do, that she is a loving, caring mother – as an admission by her that she considers it in the child’s best interests that that time be spent. 

13. One might observe in that context that I found much of the cross-examination conducted during the course of the hearing somewhat bewildering in the context of that admission.  Nevertheless, that is for another day.  For present purposes, that admission is significant in a consideration of the Primary Consideration, particularly relating to prevention from harm and what might be seen as its obverse, namely, the promotion or the benefit of a meaningful relationship between the child and her father.

14. I am conscious of a number of the Additional Considerations, including the responsibilities of parenthood exhibited by each of the parties and the willingness and capacity of each of the parties to facilitate co-parenting arrangements between them.  The evidence plainly reveals that I should have some concerns about each of those things and, again, some or all of those things may be the subject of submissions and ultimate findings in this case.

15. For present purposes, however, it seems plain to me that the child needs a relationship with her father, as, indeed, the orders proposed by the mother in Exhibit M1 and her evidence in the witness box concedes. 

16. Similarly, I am cognisant of the evidence of the co-ordinator of the G Contact Centre, who is known in these proceedings as Ms S.  I note, in particular, her evidence that the interaction between the child and her father was “very good.”  In fact, Ms S went so far as to say, that, from her observations, she thought that “they have a really lovely relationship.” 

17. Under cross-examination, Ms S indicated that she had never observed any behaviour by the child with or toward her father that caused her any concern at all.  In particular, there was never any observation of any form of sexualised behaviour or, behaviour that might be regarded as sexualised.  Within that context might conveniently be described as a positive relationship between the father and the child – I consider Ms S’s evidence, under cross-examination by counsel for the mother, that the child appeared “confident and connected” with her father to be particularly important in the current context.  Ms S said that, at the conclusion of contact, the child “went back quite happily with her mother.”

18. I am also conscious of the evidence of Dr V. Without traversing that evidence in detail, and noting, again, that evidence or submissions about that evidence and findings in respect of that evidence are likely to play a significant part in the ultimate reasons, I note that Dr V made the point that, although the father may have “deficiencies as a parent,” “it did not mean he was a dangerous parent.” 

19. That evidence, and the evidence of Ms S, does not need to be examined in any particular detail in respect of these interim orders because, as I say, the mother concedes, by the orders that she seeks, that two periods of overnight time per fortnight are in the child’s best interests.

20. Further instructions, provided by the mother to her counsel, indicate that a continuation of time, along the lines of the previous orders made on 27 July 2009, should continue.  Counsel for the independent children’s lawyer made similar submissions. 

21. The father, understandably perhaps, contends for time much more regular, and for much longer periods, for example, consistent with orders made initially in this matter by Coates FM when the child was a tiny baby.

22. For the purposes of these interim orders, it seems to me that it is in the child’s best interests that the current frequency of the relationship with her father be essentially maintained.  I consider it in her best interests that, as the mother concedes, the child should spend time overnight with her father. 

23. Overnight time provides the opportunity for a longer period of time in which a number of activities not otherwise available in the four hours of daytime time, otherwise provided for in the orders, can occur.  Moreover, the child is now two and a half and it seems to me that she has reached a time where the development of a meaningful relationship with her father has become particularly important. Overnight time better facilitates that.

24. Bearing in mind all of the considerations to which I have just made reference, it seems to me that I should make orders in the child’s best interests, pending the further hearing of this matter and the final determination of the trial issues, in terms of the orders set out at the outset of these reasons.

25. When the sequence is examined, it will be seen that, putting it in week 1/week 2 terms, the child will spend time with her father between 9.30 am and 2.30 pm on Tuesday, Thursday and Saturday of week 1 and between 9.30 am and 2.30 pm on Wednesday and between 10 am Saturday and 5 pm Sunday in week 2.

26. I am aware that those orders provide, in effect, a combination of the factors to which I have earlier made reference.  It will be observed that each of the periods of time that the father spends with the child is increased.  It will also be observed that one period of overnight time is provided for, but the length of it is, given the child’s age and the fact that she has not erstwhile spent any overnight time with her father, in my view, reasonably lengthy.

27. Bearing that in mind, I have removed from the week in which that overnight time occurs one of the midweek periods that would otherwise apply. 

28. Reviewing those times and dates reveals, which, pending the final determination of this matter, are, in my view, in the child’s best interests.

29. Consequent upon further submissions made I will make order for time on ‘special days’. An effect of those orders will be that the child spends the vast bulk of the mother’s birthday with the mother, which I consider appropriate, but that the overnight time that has been introduced by virtue of these orders is otherwise preserved.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 1 September 2010.

Associate: 

Date:  29 September 2010