Olson and Kopp

[2008] FamCA 1107

FAMILY COURT OF AUSTRALIA

OLSON & KOPP [2008] FamCA 1107

FAMILY LAW - CHILDREN - With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Olson

RESPONDENT: Ms Kopp

INDEPENDENT CHILDREN’S LAWYER: Ms Batenburg

FILE NUMBER: BRF 1691 of 2006

DATE DELIVERED: 18 December 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: By written submissions on
11 December 2008

REPRESENTATION

APPLICANT: The Applicant father appearing in person

SOLICITOR FOR THE RESPONDENT: Ms O'Gorman
Fisher Dore Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Batenburg
SBA Family Lawyers

Orders

1. In addition to the time that the father spends with the children, L born … February 2000 and M born … July 2002, provided for in the orders made on 4 December 2008, the father also spend time with the children from 4.00pm 25 December 2008 until 4.00pm 26 December 2008 with changeovers for that time to take place at McDonald’s N.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1691  of 2006

MR OLSON

Applicant Father

And

MS KOPP

Respondent Mother

REASONS FOR JUDGMENT

IN CHAMBERS

1. On 4 December 2008 I heard and determined interim proceedings in relation to time spent by the children of this relationship L born in February 2000 and M born in July 2002.

2. By orders made that day the father is to spend regular time with the children and, specifically, in the lead up to Christmas will have spent time with the children from after school on Friday 5 December 2008 until before school on Monday 8 December 2008 and from 12 noon on Friday 19 December 2008 to 12 noon Tuesday 23 December 2008. The orders provide for that sequence to continue.

3. During the course of those proceedings, the issue of the father spending time with the children at Christmas time was canvassed.  However, at the conclusion of the proceedings the mother was extremely upset and that issue was not determined.  

4. Accordingly the court sought written submissions in respect of that issue with a view to determining that discrete issue in chambers.

5. The father submits that he should spend time with the children from 5.00pm Christmas Eve until 5.00pm Christmas Day (he proposes that similar times on Christmas Day and Boxing Day ought alternate each year but it is not necessary to determine that final application here).

6. The Independent Children’s Lawyer submits that:-

   “In the circumstances of the progression of the children’s time spent with the father [Christmas] is an important and significant event in the father’s calendar and that the children should be permitted to experience and share in the special occasion with their father.”

7. In that respect I particularly note the ages of the children (currently 8 and 6) and observe that, with children of that age, it might be expected that Christmas is a particularly exciting and happy time.

8. Children should have the benefit of sharing in that happy time with each of their separated parents unless there is good reason to suggest they should not.  Here, I can find no good reason why they should not.

9. Ultimately the Independent Children’s Lawyer submits (then in the absence of proposals by the mother) that there is no reason the father’s proposal as earlier outlined ought not be accepted.

10. Subsequently, the mother’s written submissions were received.  She proposes an interim order that provides for 3.00pm Christmas Eve until 3.00pm Christmas Day one year and 3.00pm Christmas Day to 3.00pm Boxing Day in each alternative year.

11. Applications for final parenting orders remain live.  A s 65L order is in place, having been part of the orders made by me on 4 December 2008. The only current live issue is what should take place this coming Christmas.  It is the only issue about which I intend making an order.

12. The essential dispute between the parties which, apparently, they are unable to resolve, is whether contact should commence and finish at 3.00pm in lieu of 5.00pm and whether, this year, time should be on Christmas Eve through to Christmas Day or on Christmas Day through to Boxing Day.

13. No principle, object, or consideration can, on the evidence before me, be remotely relevant to determining the issue of whether time should commence at 3.00pm or 5.00pm.  I order that it commence and finish at 4.00pm.

14. No specific submission is put forward by any party for why Christmas Eve/Christmas Day ought be preferred over Christmas Day/Boxing Day.

15. I note that, pursuant to the orders made by me, time with the father most proximate to Christmas otherwise provided for in the orders will conclude at 12 noon on Tuesday 23 December 2008.  If the former proposal is preferred the children would turn around and return to their father the following day at 5.00pm (or, as I have ordered, 4.00pm).

16. It seems preferable to me that the children have the opportunity to settle down in their mother’s home after being returned at 12 noon on Tuesday 23 December.  On that basis I will order that Christmas time with the children commence at 4.00pm on Christmas Day and conclude at 4.00pm Boxing Day.  

17. I will order that, for the purposes of that Christmas time, both changeovers take place at McDonald’s N.

18. The order I will make, then, is that: in addition to the time that the father spends with the children, L born in February 2000 and M born in July 2002, provided for in the orders made on 4 December 2008, the father spend time with the children until further order from 4.00pm 25 December 2008 until 4.00pm 26 December 2008 with change overs for that time to take place at McDonald’s N.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  18 December 2008