Ogden and Ennis

[2007] FamCA 405

FAMILY COURT OF AUSTRALIA

OGDEN & ENNIS [2007] FamCA 405

FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of a child

Family Law Act 1975

Applicant: MR OGDEN

Respondent: MS ENNIS

File Number: MLF 1691 of 2000

Date Delivered: 2 February 2007

Place Delivered: Melbourne

Judgment of: Carter J

Hearing Date: 2 February 2007

Representation

Counsel for the Applicant: Ms Gregg (via videolink)

Solicitor for the Applicant: Fitzgerald & Browne

Counsel for the Respondent: Ms Brennan

Solicitor for the Respondent: Michelle Moloney Family Lawyers

Orders

1. That the orders made in the Family Court of Australia on 20 June 2003 be discharged.

2. That the children the elder daughter born in June 1995 and younger daughter born in April 1998 (“the children”) live with the respondent mother.

3. That the parties have equal share parental responsibility for the children.

4. That the children spend time with and communicate with the applicant father whilst the applicant father resides in a State outside of Victoria as follows:

   (a)during the Victorian State School first term holidays for a period of seven days, commencing on the first Saturday of those school holidays;

   (b)during the Victorian State School second term holidays for a period of 14 days commencing on the first Saturday of those school holidays;

   (c)during the Victorian State School third term holidays for a period of 12 days commencing on the first Saturday of the school holidays;

   (d)(i)       in 2006/2007 and each alternate year thereafter for 21 days commencing on the first Saturday of the school holidays;

   (ii)in 2007/2008 and each alternate year thereafter for 21 days from 3 January.

   (e)by telephone at all reasonable times with the mother facilitating and encouraging the children’s telephone communication with the father;

   (f)by letter, email and other written correspondence from time to time;

   (g)such further or alternate time as agreed between the parties from time to time.

5. That the children spend time and communicate with the applicant father, if the applicant father resides in Victoria, as follows:

   (a)each alternate weekend from 5pm Friday until 5pm Sunday.  Should the Monday be a public holiday, then the applicant father’s time is to conclude at 5pm on the Monday;

   (b)on Father’s Day from 5pm on the day preceding Father’s Day until 5pm on Father’s Day.  Should Mother’s Day fall when the children are in the applicant father’s care, then the children’s time with the applicant father is to cease at 5pm on the Saturday preceding Mother’s Day;

   (c)for one-half of all school term and Christmas holidays being seven consecutive days during the term holidays and from 12 noon on 2 January, to 12 noon on 23 January each year;

   (d)from 5pm Christmas Eve until 5pm Boxing Day in 2008 and each alternate year thereafter;

   (e)from 5pm Boxing Day until 5pm 25 December 2007 and each alternate year thereafter;

   (f)liberal telephone contact;

   (g)the applicant father be afforded to make-up time in the event that the children miss any of the above-mentioned periods;

   (h)alternate weekend time is to be suspended during all holidays and is to re-commence on the same cycle that existed prior to the holidays;

   (i)by letter, email and other written correspondence from time to time;

   (j)such further or alternate time as agreed between the parties from time to time.

6. That for the purposes of the children spending time with the applicant father, pursuant to paragraph 5 herein, changeover occur at a point half way between the parties’ residences, on the condition that the applicant father resides in the greater Melbourne area, or as otherwise agreed between the parties.

7. That each of the applicant father and respondent mother:

   (a)keep the other informed of their current residential address, home and mobile telephone numbers and the parties keep these details confidential;

   (b)each party their servants and agents be restrained from discussing any Family Court proceedings in the presence or hearing of the children;

   (c)each party by themselves servants and agents be restrained from denigrating the other in the presence or hearing of the children or either of them;

   (d)each party by themselves servants and agents be restrained from harassing the other by telephone or by approaching the other’s place of residence or place of employment.

8. That the applicant father have full and unimpeded access to the children’s school reports and activities.

9. That the respondent mother forthwith inform the applicant father of any counselling the children have participated in, any further counselling attended by the children including details of the counsellor.

10. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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.

11. That save as aforesaid all current applications be dismissed and removed from the matters awaiting finalisation.

The Court Notes

That the order relating to periods of time to be spent with the father during the long summer vacation is an order of the Court and was not made by consent.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

File Number: MLF 1691 of 2000

MR OGDEN

Applicant

and

MS ENNIS

Respondent

REASONS FOR JUDGMENT

1. This is a very limited dispute, even more limited than it was this morning, when the only matter which was discussed was the question of contribution towards the costs of travel of these children to Tasmania to see their father.  That has resolved, in a manner of speaking, in the sense that the parties have agreed that the father will, to use his counsel's term, relinquish a seven-day period in the Easter school holidays on condition that the mother pay him money saved by virtue of the fact that she will not have to take the children to and from the airport.  I suspect, but cannot be sure, that much of this case is driven more by financial reasons than it is by concern for the welfare of the children.

2. The other part of the agreement between the parties is that apart from the $130 which the mother will allegedly save by not having to take the children to the airport, all other costs associated with the flight will be paid by the father.

3. The other issue which I was told about this morning has now changed.  It had been the case that the parties were seeking different periods of time to be spent by the children with their father in Tasmania during the long summer vacation.  They were four days apart in what they were seeking.  The father says that he should have an additional period of time to make up for the seven days which she has agreed to relinquish and he now seeks that he have 28 days during each long summer vacation.  That would be timed to include Christmas Day in alternate years.

4. The mother proposed and continues to propose that he should have 21 days in the whole of the relevant period.  The mother's reasons include her desire for the children to spend quality time or block time with her during school holidays.  That would be impacted upon quite significantly by the proposals of the father at least every alternate year.

5. More to the point, in my view, the children should be with their mother for some period of time prior to the resumption of school to enable things such as uniforms, school books and the like to be organised and indeed for the children to have the opportunity to settle down after what no doubt would have been a pleasurable period with their father.

6. I think it is a great pity that the parents have not been able to resolve this aspect between them, particularly since both of them are legally aided and the community is bearing some of the costs of this as a consequence.  The suggestion of the mother, whilst being expressed in terms of her wishing to have quality time with the children, to adopt Ms Brennan's terminology, needs to be looked at, as does the father's proposal, from the eyes of the children.  It also needs to be recalled that the mother works on a part-time basis.  I have not forgotten that the father attends university.  But setting aside the Easter period of time, the other school holidays will almost entirely be spent by the children with their father, giving them - the children, that is - very little time to spend block periods with the mother.

7. It is to the benefit of a child to have as much contact as possible and to spend as much time as possible with the non‑residential parent, provided of course that it is otherwise in the child's best interests, but it is also in the interests of the child to have not just time with the other parent but time with the residential parent which is not limited to school terms and weekends but also includes the provision of a couple of weeks at least, all other things being equal, where those children can spend the holidays with their mother.

8. For those reasons, albeit it is a very finely balanced case, I prefer the proposals of the mother.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:     

Date:              8 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as OGDEN & ENNIS