Newarke and Lathwell

[2013] FamCA 1052

FAMILY COURT OF AUSTRALIA

NEWARKE & LATHWELL [2013] FamCA 1052

FAMILY LAW – CHILDREN – Interim Parenting – Where the father sought orders to vary the interim arrangements with respect to the time that the children spend with the father – Where the mother raised concerns about disruption to the children’s routines if the children spend extended time with the father – Consideration of the best interests of the child – Where it is determined that the children spend some extended time with the father than they presently do with the first three periods supervised by the father’s partner and the children’s sleep time to be supervised by G Group.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Newarke

RESPONDENT: Ms Lathwell

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 5103 of 2012

DATE DELIVERED: 23 October 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 23 October 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Biddulph & Salenger

SOLICITOR FOR THE RESPONDENT: Fox & Staniland Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Power

Orders

1. That by consent, orders are made in accordance with the document headed “Consent Orders” signed by parties and the independent children’s lawyer, initialled by me and dated today, as set out herein: 

   1. Order pursuant to Division 15.5.2 of the Family Law Rules 2004 that Dr B, Psychiatrist, be appointed as a Single Expert Witness to enquire into and prepare a Report upon matters relating to the welfare of the children, C born … 2009 and D born … 2010 and that in preparing her report to the Court, Dr B be requested to consider the following matters:

   1.1Whether the children have been or are at risk of being exposed or subjected to any physical or psychological harm or family violence.

   1.2Any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accordance to these views.

   1.3The nature of the relationship between the children and each of their parents.

   1.4The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.

   1.5The likely effect of any change in the children's circumstances including the lively effect of any separation from either of the parents or any other person with whom the children have been living.

   1.6The capacity of each of the parents to provide for the children’s needs including their emotional needs.

   1.7Each parents attitude towards the children and the responsibilities and duties of parenthood.

   1.8The capacity of the parents to communicate with each other and cooperate in relation to the children’s parenting in the future.

   1.9The affect of the children spending equal time or substantial significant time or overnight time with each parent having a regard to each parent’s current and future capacity to:

   a.  Implement such an arrangement; and

   b.    Communicate with each other and resolve difficulties that might arise.

   1.10 The Expert's opinion concerning the sexual abuse allegations against the father in   relation to the Mother's child, E born in 1988 and the risk of sexual abuse to the children, C and D, by the father.

   1.11Whether the father's time with the children should be supervised.

   1.12 Any other matter the Court Expert considers relevant.

   2.    The Father shall pay the sum of $16,000.00 to the Legal Aid NSW Trust Account by the 18^th February, 2014 for payment to Dr B on completion of his Report at first instance with a determination of the mother's contribution, if any, at the final hearing.

   3.    In the event that there remain monies available subsequent to the receipt of memorandum of fees from Dr B these monies are to be returned to the Father.

   4.    In the event that there is a shortfall the Father is to pay such additional sum to meet the costs of Dr B within 21 days of a request by Legal Aid NSW.

   5.    That in the event that any of the parties requests the Independent Children’s lawyer to make arrangements for the attendance of the Single Expert Witness appearing in this matter, the Father shall  pay for the Single Expert costs in respect of such attendance, with the Mother's contribution to be determined at the final hearing.

   6.    That the parties facilitate the preparation of the Report including attending on and arranging for the children to attend upon the Single Expert Witness.

   7.    Leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing the same to Dr B and that the fees in respect of that photocopying be waived.

   NOTATION:

   8.    The Independent Children’s Lawyer is under no obligation to brief the Single Expert in terms of Order 1 above until there has been compliance with Order 2.

1. That, in addition to Order 7 above, leave granted to the independent children’s lawyer to photocopy subpoena material for provision to Dr B is subject and conditional upon that material remaining in the possession and control of Dr B at all times and shall not be provided to any other person without further leave of the Court.

2. That this coming Christmas Day, 25 December 2013, the children shall spend time with their father between the hours of 9am until 6pm supervised by the father’s partner Ms F.

3. That orders are made in accordance with the document headed “Interim Orders” that the parties agree reflect the reasons for judgment I gave earlier, as set out herein:

   PENDING FURTHER ORDER:

   1.That interim orders dated 7 December 2012 be varied as follows in relation to the children's time with the father:-

   a)The children spend time with the father as follows:

   i.For the first three Sundays of each month from 9.00am to 6.00pm such time to be supervised by the father's partner Ms F.

   ii.Each Monday 4.30pm to 8.00pm such time to be supervised by Dial–an– Angel who will also be present at change-overs on Mondays.

   iii.For the purpose of implementing Order 1 (a) (i) Dial–an –Angel will be present at the father's residence from 1.00pm to 4.00pm on the first three occasions to supervise the children's afternoon sleep time and the mother will be responsible for the fees associated with Dial–an–Angel on these three occasions along with payment for three reports relating to such supervision.

   2.That leave is granted to the father to file an Amended Application within 14 days.

   3.That the matter be listed for mention on 18 November 2013 at 9.30 am following the 3^rd report by Dial–an-Angel as outlined in Order 1 (a) (iii) herein.

   4.The parties have leave to administratively adjourn the mention date in Order 3 if they agree the children's sleep–time pursuant to Order 1 (a) (iii) is considered appropriate.

4. That each of the parties shall file and serve the affidavits upon which they would seek to rely on or before 31 January 2014.

5. That I stand this matter over, before myself for directions, at 9.30am on 26 March 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Newarke & Lathwell 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 SYDNEY

FILE NUMBER: SYC 5103  of 2012

Mr Newarke

Applicant

And

Ms Lathwell

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. An application has been made to vary the interim arrangements that are presently on foot as to the time the two children spend with their father.  Presently they spend four hours with him three Sundays out of four and three-and-a-half hours every Monday.  Pursuant to consent orders that were made that time is supervised.  Originally it was supervised by the paternal grandmother but is presently supervised by G Group due to difficulties that arose between the paternal grandmother and the mother of the children.

3. The basis of the application is that the children are enjoying their time with their father and seem to be benefiting from it.  So much is evident from the detailed G Group notes of the last few supervised visits.

4. The orders now proposed are that C and D (“the children”) spend between the hours of 9 am and 8 pm with their father each Sunday with the time on Mondays to remain as it is.  It is proposed that the Sunday time be supervised by the father’s new partner (the mother does not object to that part of the proposal) and on Mondays by his mother (the mother objects to that part of the proposal).

5. The real difficulty that the mother raises with the children spending the extended time with their father is the issue of the children having their daily sleep.  She points out and it seems to be agreed by the father that D who is described as a gifted child is also very particular about her needs.  The mother is concerned that due to being in a new house in new circumstances with new bed and bedding that D will not be able to have the nap that she obviously needs at her age.  She proposes that if there is to be extended time involving a nap that part of the time at least should be supervised by G Group so there is independent evidence available to show how it is going.  That seems to me to be a sensible proposal.

6. It seems to be in both parents’ interests that there is someone independent on hand for the first few occasions to see how it is going so the court will not be reliant upon what might well turn out to the be completely disparate views of each of the parents as to how that time went.  It is unquestionably true that the G Group time is expensive.  However, the mother has said that she will pay for G Group to be present for the first few occasions at nap time so as to facilitate the arrangement.

7. The father, as I said, seeks time between the hours of 9 am until 8 pm.  The independent children’s lawyer submits that such period, at this stage, is too long having regard to the age of the children and it also seems to me that a more gradual extension of the time might also be desirable.

8. One of the primary considerations of s 60CC of the Family Law Act1975 (Cth) is the maintenance of a good relationship of the children with each of their parents. It seems to me, having regard to the G Group material, the relationship of the children with their father would be best maintained by an appropriate increase in time.

Conclusion

1. Accordingly, the appropriate time the children should spend with their father on Sundays should be varied so that the children spend time with him between the hours of 9 am and 6 pm and on the first three occasions the afternoon nap time shall be supervised by G Group.

2. With respect to the time on Mondays proposed to be supervised by the father’s mother there were issues of conflict on previous occasions at changeover involving the father’s mother and the mother of the children and I do not think it would be wise to revisit that situation.

3. Accordingly, and unless the parties can agree on a changeover mechanism that will not involve the two of them meeting face to face the changeovers at least will have to be facilitated by an independent third party.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 23 October 2013.

Legal Associate: 

Date:  7 January 2014