NGHIEM & ROGER

[2010] FamCA 1001

FAMILY COURT OF AUSTRALIA

NGHIEM & ROGER [2010] FamCA 1001

FAMILY LAW – CHILDREN – Relocation – with whom child spends time

Family Law Act 1975 (Cth)

APPLICANT: Ms Nghiem

RESPONDENT: Mr Roger

FILE NUMBER: SYC 6082 of 2010

DATE DELIVERED: 29 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 13 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Martin Woods

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Ms Annette Wilson

Orders

Pending further order

1. The Father, Mr Roger spend time with the child N for three days each week, from 4.30 pm Saturday until 4.30 pm the following Tuesday

2. The mother within 24 hours of this order provide to the husband written details of the child’s daily routine including his sleeping and feeding times

3. The father use his best endeavours to ensure that, while in his care, the child’s daily routine is not unduly different from the routine in the mother’s care.

4. In the event that the father’s work commitments require the child to be cared for by someone other than the paternal grandparents, the father will notify the mother as soon as possible of this circumstance.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 6082 of 2001

MS NGHIEM

Applicant

And

MR ROGER

Respondent

REASONS FOR JUDGMENT

1. Ms Nghiem (“the mother”) applies for orders that N (“the child”) born in March 2009 live with her in France.  Mr Roger (‘the father) applies for orders that the child live with him, that the parties have joint parental responsibility for the child and that on the mother relocating to France she shall spend time with the child during such time that she is able to return to Australia and as agreed between the parties.

2. The parties resolved the issue of the mother’s proposed relocation on an interim basis and orders were made.  The issue remaining for determination was the time that the father will spend with the child.

Background

1. The parties met in March 2008 and commended to live together in January 2009.  There is one child of the relationship, N born in March 2009.  The parties separated on 31 March 2010.

2. The mother arrived in Australia in January 2007 as an international student but subsequently discontinued her studies.  She is presently in Australia on a tourist visa which has been extended until December 2010. 

3. After the parties separated they agreed between themselves that the child would spend 4 days of each week with the mother and 3 days with the father.

4. The father is a public servant.  While he was able to manage his shift work to enable him to care for the child during the periods he was with him, if he was working, his parents assisted him in looking after the child.

5. On 25^th September 2010, the mother indicated to the father that unless he agreed that he alone would care for the child, she would not permit him to continue to spend time with the child.  From that time the arrangement of sharing time with the child stopped and, until a short while before the interim hearing, the father did not see the child.

6. The mother said that she believed the changing routine that had previously been in place was unsettling for the child and disrupted his routine.  She further said that because of the father’s work commitments, he had arranged for people whom she did not know to care for the child.

7. The father’s parents both filed affidavits which indicated that on occasions when the father’s work schedule meant that he had to work on a Monday when he was spending time with the child, they would assist him by looking after the child.  The child was looked after in the father’s house to keep him in familiar circumstances.  The father said that when he returned from work the child seemed always happy and contented.  It seems that the paternal grandparents were regular visitors to the parties during their relationship and spent time with the child before the parties separated.  There was no evidence before me that the child was ever cared for by someone unknown to the mother.

8. The mother proposed, in order to keep the child’s routine stable, that the father spend time with him for 3 days each fortnight including overnight and he may see the child for several hours at the mother’s house in the intervening time by agreement. The father sought a return to the regime that existed between separation and September 2010, that is three days each week.

9. It seemed from the submissions made that the mother had not informed the father of the child’s routine so that he could attempt to replicate it during the time he is caring for the child.

10. It then fell to me to decide on a regime for the child to spend time with his father pending the resolution of the matter and I reserved my decision.  The parties did however agree that in the interim period, the father spend 3 days with the child from 23^rd to 25^th October and in the following week from 4.30pm on the 30^th October to 4.30pm on the 31^st October.

11. I am conscious that it may well be that this child may be moved from Australia to live with his mother in France, if her requested relocation is granted and the future relationship between the father and the child will be considered if that occurs.  However, although the mother believed that the frequency of change of routine was unsettling the child, if she provided the father with sufficient indication of the routine that she has established for the child, it will enable the father to replicate that while the child is in his care.  I do not propose on an interim basis to reduce the time spent between the father and the child to three days per fortnight as proposed by the mother.

12. I will order that the father spend time with the child for three days in each week and direct that he use his best endeavours to apply the same routine for the child of sleeping and feeding times as the mother.  It is appropriate that if the father’s work commitments mean that he will not be available to care for the child and someone other than his parents will be looking after the child, he must inform the mother as soon as possible of that circumstance.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 29 October 2010.

Associate: 

Date:         29 October 2010