Penn and Penn

[2016] FCCA 3341

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENN & PENN [2016] FCCA 3341

Catchwords:
FAMILY LAW – Parenting – enlargement of father’s time.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS PENN

First Respondent: MR PENN

File Number: MLC 5701 of 2016

Judgment of: Judge Wilson

Hearing date: 7 December 2016

Date of Last Submission: 7 December 2016

Delivered at: Melbourne

Delivered on: 7 December 2016

REPRESENTATION

Counsel for the Applicant: Mr C Tesoriero

Solicitors for the Applicant: Amicus Lawyers

Solicitors for the Respondent: Mr N Knight of Knight Family Lawyers

Solicitors for the Independent Children’s Lawyer: Ms C Smith of Victoria Legal Aid

ORDERS

1. All extant applications be adjourned to this Court on 8 December 2016 at 3.00 p.m. for Mention.

2. All extant applications are adjourned to this Court on 31 January 2017 at 10.00 a.m. for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5701 of 2016

MS PENN

Applicant

And

MR PENN

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 16 August of this year, I made orders in relation to the parenting of X born (omitted) 2006 (“the child”) who is ten and a half years of age. Pursuant to those orders, the child lives with her mother.

2. The child’s time to be spent with the father was the subject of paragraph 10 of my orders made 16 August. A minor amendment was made to paragraph 10(c) of those orders by further order made 28 November 2016. Overnight time was to be the subject of a recommendation of a child psychologist. 

3. Today the parties told me that some unidentified issue had emerged with child psychologist Ms C. As a result, she refused to involve herself in the resolution of the issues in this case. Mr Tesoriero of counsel for the mother told me that arrangements had been made for an alternative child psychologist to involve herself in the resolution of the dispute between the mother and the father in this case. He said the new child psychologist can become involved in mid-January 2017 or thereabouts. 

4. On 5 September 2016, family consultant Mr A prepared a report following an interview held on the day this proceeding was before me on 16 August 2016. In that report, family consultant Mr A made a collection of recommendations that included –

   a)time between the child and her father recommence;

   b)overnight stays could be increased on Fridays and Saturdays so long as the father had a separate bed from the child;

   c)changeovers were to be effected at a child contact centre; and

   d)parents were to participate in and complete a post-separation parenting program. 

5. The recommencement of time between father and daughter was implemented by paragraph 10 of my orders made 16 August 2016. Aside from the ongoing dispute between the parties and with it the emotional harm that is occasioned to the child, no party before me today pointed to a specific incident of harm to the child. In all events, both parents are presently enjoined from denigrating one another in the presence or earshot of the child. My orders made 16 August 2016 required the parties to return before me today. The Independent Children’s Lawyer was represented after appointment on 16 August 2016. 

6. Contravention applications were also returned before me today. Today the parties were at an impasse in relation to the orders that are to apply between today and the date when I can next deal with this case, recognising that hopefully a new child psychologist can meaningfully contribute to this case in mid-January 2017 or thereabouts.

7. I propose to fix this case for mention on 31 January 2017 at 10.00 a.m.

8. It is therefore necessary to make arrangements for the father’s time in the intervening period, recognising that Christmas and a (country omitted) day of observance falls in between. 

9. Let me first make an observation about the orders I made previously forbidding the parties from denigrating one another. I made order 17 of the 16 August 2016 orders with a view to reducing, if not eliminating, the risk of emotional harm that can be caused to a child by ongoing verbal altercations between the parents. That violence must stop at once. I have no hesitation and will have no hesitation in dealing with any of the parents in this case who are unable or unwilling to comply with that order, if necessary by contempt orders. 

10. Let me next take the mother’s proposal. She required me to make orders requiring the father to give five days written advance notice of availability to care for the child. I refuse to make that order. The mother suggested a regime during the school term by which the father would see the child on alternate Thursdays commencing 13 December 2016, then alternate Saturdays commencing 10 December 2016 or on such other times as may be agreed. Rather obviously, agreement is unlikely, so that proposal is meaningless. 

11. In my view, the regime prescribed by the 16 August 2016 orders should be modified by enlargement. The school term is almost at an end for the 2016 calendar year. Chronologically, provision must be made to address the school public holiday period between 2016 and 2017. Thereafter, provision must be made for the 2017 school term until this matter is next before me. By then, some indication will be known from the child psychologist who the child will see in mid-January 2017. From the end of the school term, which I was told is 20 December 2016, unless the parties otherwise agree, the child should have time with her father and she with him until the resumption of school in 2017. 

12. That should be on a week-about basis with no overnight stays. 

13. When the report of the child psychologist to be consulted in mid-January 2017 is to hand, application can be made to incorporate overnight time if that is the recommendation. Time is to be between 9.00 a.m. and 9.00 p.m. every day.

14. In the Christmas period, that is to say between 20 December 2016 and the commencement of the first school term of 2017, when the child is not with the father, the father may communicate by telephone each Monday between 5.00 and 5.30 p.m. for such duration as the child wishes uninfluenced by the mother. When the 2017 school year commences, the child is to spend time with the father –

    a)every Thursday from the conclusion of school until 8.00 pm; and

    b)every Saturday from 9.00 a.m. until 5.00 p.m. 

15. I direct the parties to bring in minutes by 10.00 a.m. tomorrow to reflect the orders I have just pronounced. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date:  22 December 2016