Murray and Kings-Murray

[2007] FamCA 1411

FAMILY COURT OF AUSTRALIA

MURRAY & KINGS-MURRAY [2007] FamCA 1411

FAMILY LAW – CHILDREN – INTERIM ORDERS – Time that the child aged 15 months should spend with each of her parents – Child has lived primarily with her mother and should continue to do so while being provided the opportunity to continue to form an attachment to her father and maintain a stable routine – Parents are not currently in a position to affect equal shared parental responsibility due to their substantial conflicts

Family Law Act 1975 (Cth)

APPLICANT: Mr Murray

RESPONDENT: Ms Kings-Murray

INDEPENDENT CHILDREN’S LAWYER: Ms Romano

FILE NUMBER: CAF 509 of 2006

DATE DELIVERED: 26 November 2007

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 26 November 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Appeared on his own behalf

SOLICITOR FOR THE RESPONDENT: Appeared on her own behalf

Orders

1. The child, born on … August 2006, will continue to live primarily with her mother.

2. That the parties will not have equal shared parental responsibility for the child.

3. (a)      The child will spend time with her father between the hours of 10.00 am and 5.00 pm each Saturday with the handovers in relation thereto being facilitated through Centrecare Children’s Contact Service. 

   (b)She will spend time with her father on each Thursday between the hours of 3.00 pm and 5.00 pm, with the handovers occurring at McDonalds Family Restaurant at R with each of the parents being present for the purpose of handing the child over. The time the child will spend with her father on Thursdays will commence on Thursday 29 November 2007.

   (c)During the period of any such handover neither parent will communicate with the other except in relation to the child and each parent will promptly leave the premises immediately after the handover has occurred.

   (d)If the arrangements set out in the last two suborders do not prove to be satisfactory either parent may arrange through the Case Coordinator for re-listing of the matter on an urgent basis by telephone before me.

4. Each of the parties will take such steps as may be necessary to enrol for the mediation programme through the Family Relationship Centre at G, and will attend all appropriate intake and information sessions in preparation thereof.

5. That this is a matter in which I and the parties would be assisted by a Family Report from the Family Consultant, Ms L, who will prepare a report in accordance with Terms of Reference to be identified by me in chambers, initialled, sent to each of the parties and delivered to the Family Consultant.

6. During the course of the preparation of such report if Ms L forms the view that it is appropriate that there should be some independent or other intervention particularly related to what appears to be a continuing question between the parties about the effect, if any, that the father’s drinking or his level of drinking may have upon his ability properly to parent the child, then she may make arrangements for the matter to be relisted before me with a view to my making further orders about that proposed intervention.

7. I note that the father will consult with the appropriate police authorities with a view to changing the bail conditions that are presently imposed upon him as a result of his alleged breach of the apprehended violence order in place against him at this point to determine whether those conditions can be changed with the consent of the mother to enable him to communicate with her but only about the child through the communications book maintained at the Centrecare Children’s Contact Service which the parties use as a facility in relation to the time that the child will spend with her father.

8. The matter will be adjourned for a telephone continuation of this process until Friday 7 March 2008 at 10.00 am on that day. The arrangements about communication by telephone will be communicated with the parties by the Case Coordinator.

9. By consent, the child will spend time with her father on this Christmas Day between 9.30 am and 3.00 pm.  The handover at 9.30 am will occur outside the police station at R in New South Wales and the child will be collected by her mother at 3.00 pm from the Contact Centre at D in New South Wales.

10. The mother’s application for a divorce which has been served by post in accordance with an order for substituted service made on 7 November 2007 is adjourned for finalisation before me at 4.00 pm on Tuesday 4 December 2007 to enable the father to consider his position in relation to the application.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 509 of 2006

MR MURRAY

Applicant

And

MS KINGS-MURRAY

Respondent

REASONS FOR JUDGMENT

1. In this matter, one of the issues I am obliged to decide today relates to the arrangements about what additional time that the child will spend with her father.  This was the subject of an Application in a Case before me.  I was also asked to determine questions about Christmas Day. This matter has been resolved by consent. 

2. So far as the additional time that the child might spend with her father is concerned, there are a number of practical considerations.  One is that while the father at present is not in employment, he may achieve a different status quite soon, in which case an arrangement during the day which would otherwise be probably preferable from the child’s point of view, according to her mother and also the Family Consultant, would not be appropriate.  Hence, to accommodate the possibility of the father being able to obtain employment and being able to leave work a little earlier, the period that seems to be appropriate from a practical point of view, if there were to be additional time, is between 3.00 pm and 5.00 pm on Thursdays. 

3. That also generates other practical problems about handovers. The existing handovers occur through the facilities of Centrecare, which would not be available at those times. While it is not a situation either party is at all enthusiastic about, it seems that the “handover” or the arrangements whereby the child would move from her mother to her father and back again, should occur at a public place such as McDonalds, and would be subject to the matter being brought back before the Court if there should be problems as a consequence.

4. In making such an order I am obliged under the terms of the Act to take account of the Objects and Principles set out under Part VII of the Family Law Act 1975 which was introduced and came into effect on 1 July 2006, and any order I make must, in accordance with s 60CA, be made in the best interests of the child. 

5. The considerations I am to take into account in coming to that conclusion are set out in s 60CC and include two primary considerations which are the benefit for the child in having a meaningful relationship with each of her parents, and the need to protect her from physical or psychological harm, or from being subjected to abuse or neglect. 

6. In addition, there are a number of other factors I am to take into account which include the relationship of the child with each of the parents and, in some cases, not in this one, her own views about what arrangements would be most appropriate. I need to take account of practical difficulties and expenses associated with the time that the child spends with each parent, and the capacity of each of them properly to provide for her needs, including her emotional and intellectual needs.

7. I am also obliged to take account of any family violence that may affect the child, or for that matter her mother, as in terms of the Act “a member of [her] family”, and I need to take account of the terms of any family violence order, which would include the current Apprehended Violence Order (‘AVO’) which is presently in place, and also the bail conditions that have presently been imposed upon the father as a consequence of an alleged breach of that AVO.

8. I am also to take account of, even on an interim basis, the presumption that the Act engenders that there should be a presumption that there should be equal shared parental responsibility for the child.  This is an interim matter, and the Act specifically provides an exception in relation to interim orders, and in my opinion it would not be appropriate in the circumstances of this matter as it stands at present for the presumption to be applied.  The child has lived principally with her mother.  There are circumstances of significant conflict, no matter how I like to interpret the views of each of the parents as expressed to me this day, and in my opinion there is no reasonable basis upon which the parents can, at this point, engage in a process of equal shared parental responsibility.

9. Accordingly, it is not necessary for me then to consider as a matter of obligation the questions about whether or not there should be equal shared time as opposed to responsibility for the child between the parents, or that there should be substantial and significant time in accordance with the terms of the Act. In my opinion it is appropriate in these circumstances, irrespective of whether or not the presumption applies, for the child to spend at present the bulk of her time with her mother.  This is in part because of the stage at which she is at in her present development and some of the history of the parties, although I am far from reaching any conclusion about what that history might indicate. 

10. I am also conscious of the advice that I received from the Family Consultant this day that at the child’s age it would be preferable for her to have possibly shorter, but more frequent, times with her father to ensure that until the age of three she has an opportunity to develop an attachment with her father which may not otherwise occur. I am also conscious of the fact that the Family Consultant has drawn attention to the importance of children of this age to have a routine, and I accept both the father’s evidence and the mother’s commentary on it, that the present arrangements on Saturday introduce such a routine. I have also accepted the advice of the Family Consultant that it would be appropriate that the parties should investigate through the Family Relationship Centre in G the opportunity to develop skills by which they might more appropriately communicate.

11. Accordingly, I make the following orders this day and reserve the determination of questions of identifying the issues between the parties until another time.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Faulks

Associate

Date:  5 December 2007