Randall-Moss and Randall-Moss

[2007] FamCA 5

FAMILY COURT OF AUSTRALIA

RANDALL-MOSS & RANDALL-MOSS [2007] FamCA 5

FAMILY LAW – CHILDREN - Equal Shared Parenting - Time Spent - Other Injunctive Issues

Family Law Act 1975 (Cth)

APPLICANT: Mr Randall-Moss

RESPONDENT: Mrs Randall-Moss

FILE NUMBER: MLF 1234 of 2006

DATE DELIVERED: 9 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 9 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wraith

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Mr Whitchurch

SOLICITOR FOR THE RESPONDENT: Wightons

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Bender

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Victoria Legal Aid

Orders

IT IS ORDERED BY CONSENT, (SAVE AS EXPRESSLY INDICATED TO THE CONTRARY):

1. THAT the parents retain shared equal parental responsibility of the children, T born in May 1992 and K born in September 1995 (“the children”).

2. THAT the children live with the wife.

3. THAT the children spend time with the husband as follows:

   (a)from 5.00 p.m. 12 January 2007 until 6.00 p.m. on 19 January 2007.

   FROM THE COMMENCEMENT OF TERM 1 2007

   (b)each Wednesday (or such other week day as the parties may agree having regard to the children’s school, sporting and other commitments) from 3.30 p.m. until 7.30 p.m., it being the responsibility of the father to feed the children.

   (c)each alternate weekend from after school Friday or 3.30 p.m. until 6.00 p.m. Sunday commencing 2 February 2007, save that in the event that the husband is unable to collect the children from school, or arrange for their collection at the conclusion of school, then such period commence at 6.00 p.m. Friday, with collection at the home of the wife. For the purposes of this order, where practicable the husband to give the wife at least twenty-four (24) hours notice of his inability to commence the period at 3:30 p.m.;

   (d)for a total of four (4) weeks each year during school holiday periods with such periods to coincide with the husband’s annual leave.  For this purpose the husband provide the wife with six (6) weeks notice of his intention to exercise part of this time (no such period to exceed half of any holiday period);

   (e)that the wife be permitted to suspend the husband’s time with the children pursuant to (b) and (c) during four (4) weeks of the children’s school holidays each year and she provide the husband with six (6) weeks notice of her intention to do so (no such period to exceed half of any holiday period);

   (f)that where he would not otherwise do so, the husband spend time with the children from 5.00 p.m. on the Saturday prior to Father’s Day until 5.00 p.m. Father’s Day;

   (g)that notwithstanding the above the father not spend time with the children from 5.00 p.m. on the Saturday prior to Mother’s Day, until 5.00 p.m. Mother’s Day;

   (h)each alternate year the children spend from 6.00 p.m. Christmas Eve until 3.00 p.m. Christmas Day commencing 2007, and they spend from 3.00 p.m. Christmas Day until 6.00 p.m. Boxing Day in 2008, and each alternate year thereafter;

4. THAT the children spend such further or other time with the parties as the parties may agree.

5. THAT save as may be otherwise agreed between the parties, each Sunday of contact pursuant to Order 3(c) the parties punctually deliver the children to and collect them from the Shell Service Station, Port Melbourne, and otherwise the husband or in circumstances where it is necessary his nominee (subject to order 9) collect them from school or the wife’s residence and return them to the wife’s residence as is appropriate. (It being noted that prior to 28 January 2007 the wife’s residence will be the former matrimonial home in L, and from 28 January 2007 the wife’s residence will be in O).

6. THAT the parties permit and encourage the children to take their belongings (including clothes) to and from time spent with each party.

7. THAT one or both the children attend upon a counsellor at Relationships Australia or such other counsellor as nominated by the Independent Children’s Lawyer at such times as directed by the said counsellor and that the parties attend such counsellor at times as requested by the said counsellor, with the husband to bear the cost of such counselling.

8. THAT the husband communicate with the children by telephone between 7:30 p.m. and 8.00 p.m. each Tuesday, Thursday and Friday when they are not otherwise in his care, and the wife have like communication with the children during times they are on extended holiday contact with the husband.

FURTHER ORDERS NOT BY CONSENT:

1. THAT Ms K not be present at all during contact prior to 5 March 2007, and thereafter any order limiting or prohibiting her involvement with the children be discharged.

2. THAT paragraph 8,9,10 and 11 of the order made 19 December 2006 be discharged.

3. THAT the appointment of the Independent Children’s Lawyer be and is hereby discharged.

4. THAT pursuant to sections 65DA(2) and 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 are set out in Annexure “A” and these particulars are included in these orders.

5. THAT all extant applications with respect to children’s orders be dismissed.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband, the wife and the Independent Children’s Lawyer.

2. The extempore reasons of Judgement this day be transcribed and placed on the Court file and copies be made available to all parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1234 of 2006

Mr Randall-Moss

Applicant

And

Mrs Randall-Moss

Respondent

REASONS FOR JUDGMENT

1. The matter of Randall-Moss returns to court pursuant to my orders of 19 December 2006.  Mr Wraith of counsel appears for the applicant husband, Mr Whitchurch of counsel appears for the respondent wife and Ms Bender appears instructed by the independent children's lawyer.

2. The orders that I pronounced on 19 December 2006 envisaged a meeting and discussion at court today and I am advised that the requirements of paragraphs 12 and 13 of those orders were undertaken this day and the parties and each of the children were at court. 

3. I was advised that there was no resolution of the limited outstanding children's issues and I will now give reasons and pronounce orders that finalise these children's issues.  There are property and financial issues that will be the subject of further submissions and evidence and which I will subsequently hear and determine. 

4. The structure of the current orders is that parties retain equal shared parental responsibility for the children, T born in May 1992, now 14 and a half years of age, and K born in September 1995, now approaching 11 and a half years of age.   Those orders provided for the children to live with the wife on an interim basis and otherwise for time to be spent by each of the children with the husband through the Christmas/New Year period and thereafter on an alternate weekend basis from after school on Friday or 3.30 p.m. until 6.00 p.m. Sunday. 

5. Those orders were designated to commence on 9 February 2007, but there is now common agreement that they will commence on 2 February 2007.  Additionally, the husband is to see the children each Wednesday from after school until 7.30 p.m.  There were other orders as to holidays and in relation to the collection and changeover of the children. 

6. I am asked by both the husband and wife and also it is the submission of the independent children's lawyer that all children's matters should be finalised.  That would require the discharge of paragraphs 9, 10 and 11 of the most recent orders and the parties would thereby not be attending any psychiatrist for ongoing reports to be prepared.  The husband has indicated and the wife is in agreement to it being his sole responsibility to meet any costs that arose pursuant to paragraph 8 of the current orders. 

7. The two issues that initially were alive when the matter proceeded by way of submissions this morning were the commencement date of alternate weekend time to be spent by the husband with the children - that is no longer an issue and after the January holidays have concluded those alternate weekends will commence on Friday, 2 February 2007.  Christmas Eve is now no longer an issue and in 2007 and alternate years the children will go to bed at the home of their father and wake up at his home.  There is a typographical error in paragraph 3(l) of the current orders and the year "2008" should be substituted for the year "2007" where it secondly appears in that order.  Again that is a matter now of consent.

8. The most contentious issue of and related to the children is the appearance of the husband's partner, Ms K during periods when he spends time with the children.  The initial injunctive order is contained in paragraph 13 of my orders of 14 September 2006 when the husband's partner is excluded from being present on any Sunday.  Subsequently the issue was dealt with in paragraph 6 of the most recent orders and she is restrained from being present only on contact occasions prior to 9 January 2007, though that does not override the restriction on any Sunday.

9. Mr Whitchurch has elaborated on the concerns of the wife.  The relationship of the husband and Ms K is not yet tested or proven.  Nevertheless, both children have met this lady and she was present for the out‑of‑court consultation this morning.  I understand the recommendation of the family consultant, Mr A, to be that those injunctions be lifted immediately.  On behalf of the independent children's lawyer, Ms Bender foreshadowed a similar but perhaps more cautious approach. 

10. Ms K has three children and their ages are approximately 10, 6 and 4.  What is envisaged on an ongoing basis is that the five children of each of the respective families will be together on the alternate weekend time to be spent, and otherwise T and K will come to know Ms K if the relationship with the husband continues to develop. 

11. I envisage that the acceptance of this relationship has caused and is continuing to cause some issues for the wife.  But her primary obligation is clearly to encourage and support the children and there is a reality that, subject to any other injunctive issue or matter of substance, life does continue and children do have to adapt and generally fit in with the parents' circumstances.  Whilst I am mindful of the history of this matter, in particular the necessity of the wife to have Magistrates' Court intervention orders sought, and now in place, the reality is that the children need to have an opportunity for issues to settle down and for them to see each of their parents in a normal family environment that is now the day‑to‑day life of both parents.  

12. What I will do is to discharge the injunctions, but I will postpone the date of that effective discharge to Monday, 5 March 2007.  My logic and intent is to provide to the husband the balance of January holidays with the children and then a period of several weekends in February so he can re‑establish the bond and relationship with the children, give them quality time, 100 per cent, without the appearance of the other three children and Ms K. 

13. However, from the next time that the husband spends with the children on a weekend or holidays on and after Monday, 5 March 2007 there will be no legal impediment to the husband's exercise of proper discretion and in keeping with the children's ability to understand and cooperate with appropriate arrangements for the weekend for that lady to be present for part or all of the time.  I am not going to lay down any individual rule that she may or may not spend the night in the home of the husband when the children are present, that will no doubt happen in good time, but that is a real issue for the husband and his own level of responsibility and integrity to deal with.

14. There is an issue in relation to the commencement time of weekend periods if the husband is working.  I propose to leave the period to be 3.30 p.m. on each alternate Friday with collection being from the children's school.  However, on what I hope are merely odd occasions if the husband is detained at work, then commencement time will be fixed for 6.00 p.m. at the wife's residence, subject to the husband appropriately notifying her earlier in the day. 

15. I would trust that the husband does not have to enter into the wife's home or on her property but he simply parks his car at the front drive and the children exit the home, with the full cooperation and support of their mother and with all of their necessary belongings, and enter the husband's car for an enjoyable time to be spent with him. 

16. I have elected not to make any further procedural orders in that regard and will on this occasion trust the wife to ensure that matters proceed in a smooth and cooperative manner.  Both parties intend and the independent children's lawyer requests that the orders be made final.  That means there are no ongoing children's orders before the court, no further reports and the children are not required for further conferences or consultations.  That clearly must be a positive circumstance for the children, who need simply now to spend time with their parents and not be further questioned or subjected to reports. 

17. I will make final orders and that will then necessitate discharging the appointment of the independent children's lawyer.  I will have these extempore reasons for judgment transcribed, placed upon the court file and made available to all parties.  I highlight that the orders that I propose to pronounce are developed in the best interests of each of the children.  Having reread the previous report of Mr A and otherwise accepting of the position of the independent children's lawyer, there is clearly every good reason why these orders should be final and why the parents are required to comply with the orders in the interest of their children.

18. Paragraphs 1, 2 and 3 will have excluded the expression "until further order", and similarly whether they are by consent or whether they are by the court I am content to make the orders, because there are one or two matters I know that the wife does not agree to, but it will be necessary in (g) to have the default provision of "commencing at 6 o'clock on the Friday", at your client's election, he to notify the wife.  I have not varied any of the other holidays, Father's Day or Mother's Day. 

19. The collection seems to be specifically that the husband is either collecting at school or at the wife's residence - which will be named as "the [O] property" and not "the [L] property" - and the collection will be at the same venue, at the service station in Port Melbourne, on the Sunday.  The word "punctually" needs to be inserted there; I do not want someone unduly waiting. 

20. The injunctions as contained in paragraph 13 of the earlier 14 September orders, or more recently in paragraph 6, will be discharged from 5 March 2007 but not prior to that date.  Otherwise, those paragraphs, as I indicated, 9, 10 and 11, for the psychiatrist are to be discharged.  Paragraph 8, the husband pays.  Then the appointment of the Independent Children's Lawyer will be discharged upon the making of the orders.  I think it is best if counsel draft the final form of these orders because there might be some other timing issue that arises. 

21. This is the final paragraph of each judgment.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date:  15 January 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Randall-Moss & Randall-Moss