MILLFORD & TAGGERT

[2020] FCCA 3570

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLFORD & TAGGERT [2020] FCCA 3570

Catchwords:
FAMILY LAW – Parenting – concerning children aged six and five years old – where pursuant to previous court orders the children live with the mother and spend time with the father – interim parenting application concerning children’s school holiday time with the parties – where the mother’s position as to whether she will agree to block time is unclear – interim order for children to spend time with the parties in a week about arrangement.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS MILLFORD

Respondent: MR TAGGERT

File Number: DNC 391 of 2020

Judgment of: Judge Young

Hearing date: 22 December 2020

Date of Last Submission: 22 December 2020

Delivered at: Darwin

Delivered on: 22 December 2020

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms Burgess

Solicitors for the Respondent: Burgess Family Law

ORDERS

THE COURT ORDERS:

1. The children X born in 2014 and Y born in 2015 (collectively “the children”) spend time with each parent during the period of the 2020/21 summer school holidays on a week about arrangement, commencing with spending time with the mother from 26 December 2020.

THE COURT ORDERS BY CONSENT:

1. That for the purpose of changeovers, all changeovers on school days occur upon the conclusion of school at school and on non-school days, at Hungry Jacks, Suburb B.

2. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the children X born in 2014 and Y born in 2015 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the child's interests.

3. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

4. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

5. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

6. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship attend upon Mr C as a private family consultant at equal expense on a date to be nominated by the family consultant for the purposes of the preparation of a Family Report.

7. On a without admission basis, that during any period the children spend time with the Father, there be an injunction granted restraining the Father from playing poker machines at any licensed or gambling venue while the children are in his care.

8. That an injunction be granted and the parents shall be restrained from physically disciplining the children.

9. That the proceedings are adjourned to the trial call-over list on 17 June 2021 at 11:30am.

10. That the parties no less than seven (7) days prior to the call-over date provide to the Court:

    (a)A brief Summary of Argument including Minute of Orders sought; and

    (b)A trial plan indicating estimated length of trial sought and witnesses relied upon at trial.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 391 of 2020

MS MILLFORD

Applicant

And

MR TAGGERT

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim parenting application, concerning X who is six, he will be seven in January, and Y who is five.  It is said that Y suffers from ADHD, though there seems to be some kind of dispute about that.  The parties make various allegations and counter-allegations against each other.  They are set out, in some detail, in a child dispute conference memorandum, which, really, simply tells me that those parties are hostile and cannot agree on anything. 

3. The orders made by the Court in September 2020 were that the children spend two nights in week one with the father, Monday and Tuesday, and in week two that they spend four nights with the father, that is six nights out of 14 each fortnight.  I asked counsel for the mother whether it was the mother’s position that that block time was appropriate.   Counsel for the mother pointed me to paragraph 69 of the mother's affidavit, filed on 18 December, where she says, beginning at paragraph 66:

   66. On 20 October I wrote to Mr Taggert and asked him that he agree Christmas holiday arrangements.

   67. I stated “my preference is that we continue to build stability for the boys and continue arrangements as per the current pattern – we did this last holidays and it worked well”.

   68. Mr Taggert wrote back that he wanted to “move toward the normal school holiday shared parenting arrangement” and mentioned blocks of 1-2 weeks at a time.

   69. I agreed to the allocation of specific weeks but said I wanted to continue the 8:6 arrangement – i.e. giving him 6 nights in a row.

4. When I returned to that question with counsel for the mother, after hearing submissions from counsel for the father, counsel for the mother resiled, as I understood it, from that position, and said the mother's position was that it ought to be two nights followed by four nights in the second week.  That is, clearly, resiling from the position the mother said that she wanted to continue, in October.  I am, frankly, uncertain about what the mother's position is.  Whether she is insistent upon a cycle of two nights and four nights, in the two weeks of the fortnight, or whether she would agree to block time.  She clearly states that she would agree to block time in her affidavit, at least in October.

5. Counsel for the father points out that the mother, in fact, offered seven nights, at one point.  However the mother's affidavit says that that was by error, she simply meant six nights in the block.  I am comfortably satisfied that the mother has definitely proposed six nights in a block at different times.  The father's counsel said had that been known this hearing probably would not have been required.  I see no real difference between six nights out of fourteen and seven nights out of fourteen.  Neither party could point me to any significant difference.  When I asked Ms Farmer how block time would impact upon the younger child's, supposed ADHD and bad behaviour she was not, really, able to point to anything.

6. In addition, the parties agree that each of them is to have a seven day holiday, with the children, in Queensland.  One seven days with the mother and a subsequent seven days with the father, in Queensland. 

7. All in all, I see no reason why there shouldn’t be a seven day/seven day arrangement over the school holidays and that is the order that will be made. 

8. I also propose to make the other orders two, three, four, six and seven sought in the applicant mother’s outline.  Order eight will be reworded, slightly, so that during any period the children spend time with the father there is to be an injunction granted that the father is restrained from playing poker machines at any licenced or gambling premises on which he may attend with the children and that is by consent.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 18 January 2021