Reichert and Reichert

[2008] FamCA 534

FAMILY COURT OF AUSTRALIA

REICHERT & REICHERT [2008] FamCA 534

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

Family Law Act 1975 (Cth)

APPLICANT: Mr Reichert

RESPONDENT: Mrs Reichert

FILE NUMBER: SYF 2948 of 2006

DATE DELIVERED: 9 July 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Bell J

HEARING DATE: 8 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Barkus Edwards Doolan

COUNSEL FOR THE RESPONDENT: Ms Messner

SOLICITOR FOR THE RESPONDENT: Briggs & Associates

Orders

1. That the interim Orders made by this Court on 13 February 2007 be discharged.

2. That the father and the mother have equal shared parental responsibility in consultation with one another for making decisions on major long term issues relating to the child … born … September 2001 (“the child”).

3. That the mother has responsibility for making decisions for non-major long term issues relating to the child when she lives or spends time with her and the father have responsibility for making such decisions when the child lives with or spends time with him.

4. That the child live with the father as follows:

   a.each alternate weekend from the conclusion of school on Friday until 6.00pm on Sunday and then commencing from the second weekend in October 2008, each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday, such period to be extended to 7.00pm on the Monday in the event Monday is a public holiday;

   b.every Wednesday from the conclusion of school on Wednesday until the commencement of school the following Thursday;

   c.from 5.00pm Tuesday 8 July 2008 to 6.00pm Thursday 10 July 2008;

   d.from 9.00am Saturday 19 July 2008 to 7.00pm Sunday 20 July 2008;

   e.from the conclusion of school on Tuesday 22 July 2008 until the commencement of school the following Wednesday morning;

   f.for the first half of the April school holidays;

   g.for the first half of the June/July school holidays;

   h.from 9:00am until 7:30pm on Christmas Eve in each year save that in 2009 and each alternate year thereafter the mother be permitted on giving the father one months’ notice in writing to take the child to Melbourne to celebrate Christmas with members of her extended family departing Sydney no earlier than 18 December of that year and returning to Sydney no later than 12noon Boxing Day of that year and in such years the father shall forgo time to be spent with the child on Christmas Eve and the block period of time to be spent with the child during the Christmas school holidays shall commence at 12noon Boxing Day;

   i.for two weeks during the Christmas school holidays each year, commencing at 9:00am on 26 December and concluding at 7:30pm on 9 January;

   j.from 9:00am until 7:30pm on the father’s birthday in the event the child is not at school and in the event that the father’s birthday falls on a day the child is at school, from the conclusion of school that day until 7:30pm;

   k.in the event the child’s birthday falls on a day the child is at school, for 3 hours as agreed and if not agreed from the conclusion of school until 6:30pm and in the event the child’s birthday falls on a day the child is not at school, for 5 hours as agreed and if not agreed from 2:00pm until 7:30pm;

   l.from 9:00am until 7:30pm on Father’s Day;

   m.on each of Passover, Jewish New Year and Chanukah (“Jewish holiday”), from the conclusion of school (or 3.00pm if the child is not at school) on the day of the Jewish holiday until the commencement of school the following day (or 7.30pm if the child is not attending  school);

   n.such other times as agreed between the parties in writing. 

5. That the child live with the mother at all other times.

6. That the period the child lives with the father is suspended on:

   a.Mother’s Day from 9:00am until 7:30pm;

   b.from 9:00am until 7:30pm on the mother’s birthday in the event the child is not at school and in the event that the mother’s birthday falls on a day the child is at school, from the conclusion of school that day until 7:30pm;

   c.from 9.00am until 7.30pm on … November each year, being the day of the child’s brother’s birthday.

7. That the periods the child lives with the father pursuant to paragraphs 4.1 and 4.2 are suspended:

   a.during the second half of the April school holidays;

   b.during the second half of the June/July school holidays;

   c.for 2 weeks during the Christmas school holidays each year from 7:30pm on 9 January and concluding on 23 January.

8. The mother be permitted to take the child away on holidays during the Christmas school holidays provided that the mother gives to the father no less than one months’ notice of her intention and further provided that such period does not impinge on the father’s block period during the Christmas school holidays and in such event:

   a.the time the father is to spend with the child pursuant to paragraphs 4.1 and 4.2 shall be suspended during the period the child is away with the mother; and

   b.the father shall have make-up time with the child as agreed between the parties in writing and failing agreement within 7 days of receipt of the mother’s notice on as many weekends as soon as possible thereafter which would not normally be a weekend which the child spends with the father as necessary.

9. The Court notes the intention of these Orders is to provide for the time the child lives with the father on alternate weekends and on Wednesdays is not suspended in the September/October school holidays each year and is only suspended in the Christmas school holidays as provided for in paragraphs 4.8, 7.3 and 8.

10. That, where applicable, the father collect the child from the child’s school at the commencement of his period of residence and return the child to the child’s school at the conclusion of his period of residence and otherwise the father collect the child from the mother’s home at the commencement of his period of residence and the mother collect the child from the father’s home at the conclusion of his period of residence.

11. That the child shall communicate by telephone with the other party and the parties shall facilitate such communication by telephone, to be effected by the party telephoning the child at 7:00pm each evening at the home of the party with the care of the child or such other place as nominated by the party.

12. That each of the father and the mother be and hereby is restrained from:

    a.Discussing these proceedings or the documents prepared in connection with them with the child or in her presence and shall use their best endeavours to ensure that no other person does so;

    b.Causing or permitting the child to see any of the documents prepared in connection with these proceedings;

    c.Denigrating the other parent or any member of the other parent’s household to or in the presence or hearing of the child and shall use their best endeavours to ensure that no other person does so;

    d.without admissions from physically disciplining the child.

13. That each party notify the other, as soon as possible and in any event within 24 hours, of any serious injury or illness suffered by the child whilst with that party.

14. That each party notify the other, not more than 24 hours after any change to the address and/or landline and/or mobile telephone numbers and/or the email address.

15. That each parent notify the other of the address and telephone number/s of the place/s where the child will be staying during holidays spent away from their home, not later than 48 hours prior to the commencement of any holiday period.

16. That each party provide to the other party the names, addresses and telephone numbers of all medical professionals who may treat the child and authorise each of them in writing to provide copies of any test results, letters of referrals, reports and letters received from other medical professionals to the other party and authorise them to discuss any aspect of the child’s health with the other party.

17. That each of the father and the mother shall forthwith do all acts and things and sign all documents necessary to make an application for the issue of a passport for the child and upon the issue of such passport to deliver same to the mother who shall retain possession of the passport.

18. Notwithstanding any provision to the contrary, that the father be permitted to take the child to the United States of America for the period from 2 to 7 September 2009 and at least 28 days prior to the departure date:

    a.the father shall provide to the mother an accurate itinerary to include the departure and return dates and the telephone number and address at which the father and the child can be contacted  and a copy of return tickets or e-tickets;

    b.the mother shall deliver the child’s passport to the father and the father shall within 7 days of return to the Commonwealth of Australia deliver the child’s passport to the mother.

19. Either party may take the child outside of the Commonwealth of Australia for a holiday provided the following conditions are met:

    a.the parent wishing to take the trip provides to the other parent at least 90 days prior written notice of their intention to take the child on an overseas holiday including expected dates of the trip and destination(s);

    b.the trip must be during school holiday periods unless otherwise agreed in writing;

    c.the trip must be during times the parent taking the trip would otherwise spend with the child pursuant to these Orders unless otherwise agreed in writing;

    d.at least 28 days prior to the departure date the parent taking the trip must provide to the other parent the following:

    i.an accurate itinerary to include the departure and return dates, the country or countries the parent and the child will be travelling to, the appropriate dates on which the parent and the child will arrive and depart each country and the telephone number and address at which the parent and the child can be contacted in each country;

    ii.copy of return tickets or e-tickets;

    e.the mother shall at least 14 days prior to the date of departure deliver the child’s passport to the father (if he is taking the child overseas) and the father shall within 7 days of return to the Commonwealth of Australia deliver the child’s passport to the mother;

    f.the parent on holiday with the child will facilitate telephone communication with the child and the other parent during the holiday and shall make the child available at all reasonable times to communicate with the other parent when they telephone the child.

20. That within 28 days of the date of these Orders the mother pay to the father $2,000 by way of contribution for the fees paid to Dr M in preparation of her initial report.

21. Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), 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.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2948 of 2006

MR REICHERT

Applicant

And

MRS REICHERT

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of the Father for specific orders in relation to a parenting matter before this Court.  The respondent is the Mother.  The parties met, I believe it was, in South Africa and commenced cohabitation in 2000.  From the union, as aforesaid, a child was born, that being a daughter, L, who was born in September 2001.  They moved to Australia and the child commenced school in 2007, I think it was, at B, a Christian girls' kindergarten.  She has remained there since. The Mother had a child from a previous marriage, namely a son, S, who looms, to a certain extent, reasonably large.  He was born in November 1992.  There appears to be a close, warm and loving relationship between S and his half-sister, L.

2. The parties separated and, for a period, it appears as though contact was going reasonably well.  It is submitted, by Ms Messner of counsel for the Respondent Mother, that the Father was a distant father.  It perhaps would have been alleged that his practice of his profession required him to absent himself from the matrimonial home for considerable periods during the day.  However, difficulties have arisen and I am assisted greatly in this matter by the reports of Dr M; in particular the report which is exhibit 1, and also the second of her reports which I think was 30 January 2008 (exhibit 2).

3. Upon an initial reading of the material in this matter, I would have thought that the parties were so diametrically opposed that they could not agree on what day of the week it is.  Fortunately, I am sure, they are realising that the child's welfare has more importance than their own perhaps, some people less charitable than myself may say, petty differences between each other, such that after a period yesterday in discussions - I am sure, assisted by the respective legal advisers - they were able to narrow the issues tremendously.  This matter was set down for three days and went less than a day, I would point out, and I compliment them upon that.  There has been a great deal of movement by both parties and I am sure that both parties, as their attitudes towards each other are such, will say that they are the one who gave more than the other side did.  I am not particularly worried about that.  I am particularly worried about the welfare of this child.

4. May I say in passing that I am mindful of the presumptions which have been put into this Act in 2006, in which this Court has its hands bound by having to face a presumption of not only equal parenting but equal time-sharing.  I sometimes wonder how much investigation the politicians did into the philosophy of equal time-sharing for children.  It has always been in my view that, in cases such as that, where they talk about week and weekabout, it never ceased to amaze me that they would insist that the parents move out of the home and not the child moving from one home to another, but if you suggest that to one of the parties (I am not saying this is the case, of course), that they move out, week and weekabout, they suggest the parents consider it is much too inconvenient.  I cannot understand why it is inconvenient for them and not the children; however, I digress.  I am mindful of that presumption. 

5. In this case the initial presumption of shared parental responsibility has, quite properly, been taken out of my hands and the parties have consented to such presumption remaining in force, in effect, and have requested me to make an order to that effect.  I will. 

6. The parties have further agreed that the Father will have significant time with the child, rather than equal shared time, and that generally - and once again I compliment the parties - they have agreed on all matters.  However, as usual, there are the fine points which need some consideration, and I take into consideration the efforts that have been made by the parties to shorten and narrow the compass of the dispute.

7. The Mother's concerns have been allayed to a certain extent.  Her concerns were with the difficulty of the child going on - if I might use an old‑fashioned word which no longer appears in the lexicon of family law - access or contact with the Father.  She said the child was very difficult, screamed, indicated that she was suffering from pains in her stomach.  Dr M, in both of her reports, has emphasised the fact that the child, whilst in the company of the Father, in her presence, without the mother, exhibited no such signs of distress but indicated to her - to Dr M - that in fact the child had a warm, loving and close relationship with the Father, although it appears to me that her preferred parent, if I could put it that way, is the Mother; and she, of course, has been the primary caregiver since the child's birth.  That is fully understandable.  They are both good parents.  They may not be good persons in the eyes of the other but they are endeavouring to do the best they can by their child. 

8. I take into consideration those matters under s.60CC of the Act, which I have to do, according to the directions of the Court of Appeal, but I take into consideration those matters only which I consider of importance in this case, and I think there are two.  I believe that both the parents would advance the welfare of the child by being in their possession.  I have some doubts about the Mother.  She, very honestly, conceded that she would not move outside the strictures of the order which will be made by myself and I compliment her for her honesty in saying that.  Frequently we have people who will get into Court and say, "Oh yes, I'll offer anything to the other side to make the child happy today," but she says, "I won't," and, as I said, I compliment her for that but I am sure she will change in the fullness of time. 

9. I consider that it is in the interests of the child that she have contact or that she spend time with both parents and that, as has been put forward, the time be significant.  I have had the assistance of counsel in this matter and they have put before me modified draft orders suggested and I have them to hand.  There is one proposed by the Father's minutes of proposed orders and that is the one, as I said, which was varied, and I have the Mother's, and in those orders the difficulties of the parties are highlighted.  I will look at the Father's minutes, if you would not mind, and I refer to those matters which are in dispute, and I note that the consent orders, if I may put it that way, or the agreed orders, go through numerous pages and numerous paragraphs and subparagraphs but I think there are about three which I have determined and, at the risk of being repetitive, I compliment the parties on that. 

10. 4.1:  This is the question of whether there should be alternate weekend contact - the child should spend time with the Father on alternate weekends, as proposed by the Mother - or whether the child should spend time with the Father on each weekend, as proposed by him.

11. I am terribly sorry, we are talking about the Wednesday.  This is not disputed - that is, that the Father spend alternate weekends with the child - but the Mother indicates that such extension of the time until the following Monday should be delayed for a period of approximately three months.  She proposed that in fact that spending time with should be from Friday to Sunday, for a period of three months, which I think was until, we decided yesterday, about October, or sometime this year, and that thereafter it should be as sought by the Father. 

12. The Father counters this by submitting that in fact the answers to questions proposed by the Father to the expert, Dr M, directed her attention to the fact of whether there should be any suggestion of extension of time or not, and I am persuaded - and also her mind was directed to the Wednesday period, which I will be coming to next.  I am, in this case, more of the opinion that, since the child will be spending considerable time, by consent, with the Father between then and when the alternative weekends come into force and effect - for instance, I think the child has gone with the Father yesterday afternoon and is being returned to the Mother Thursday afternoon, and he is also going to spend some time with the child at the end of her skiing holidays.  As a result thereof, I feel that any question of the child not being ready for the extension of the alternate weekend has been answered and consequently I will order that in accordance with 4.1 of the Father.

1. 4.2:  There is the question of whether the child should spend time with the Father, as she is doing at present, if my memory serves me correctly, on each alternate Wednesday until Thursday morning, or, as the father proposes, each Wednesday.  Once again, Dr M’s mind was directed to this and she could see no reason why the child should not have every Wednesday.  I concur with that and can see no reason why that order should not be made. 

2. 4.6:  The difficulty with 4.6 is that the Mother is minded to take the child - she having contact with her family in Melbourne, that she may desire to take the child down for holidays in Melbourne, not only for the Christmas period but also, I think she said, perhaps, with a bit of luck, for a period of approximately six weeks.  The father has submitted that there, in effect, should be an alternation of the period that he seeks for Christmas Eve, notwithstanding the fact he is of the Jewish faith.  He submits that there should be alternation of that 9.00 am to 7.30 pm.  I do not think that the Mother objects to that, save that she wishes to have the opportunity of going away, and the submission put forward by the Father in relation to 4.6 in the draft seems to endeavour to cover that, with the Mother giving notice, and I think that that is probably quite right.

3. I note that 4.6 is in effect inextricably intertwined with 7(a) and I make those orders. 

4. The question of suspension, suspension of the midweek spending time with during school holidays:  This has always been a contentious matter in this Court.  Many people assume that, because it is school holidays, orders do not continue to run and I, for one, am quite satisfied that the matter should be brought to the attention of the Court and that specific orders should be made for it, particularly in cases where parties cannot agree about anything but have done so in this.  I believe that it should be suspended in the school holidays because, if it is not suspended, the Mother does not have an uninterrupted week during which she can have the child for her holidays, in effect.  The Father has the first or second half, as the case may be; his period of time is not interrupted.  If the order is not suspended, it means that, on the Wednesday of the Mother's week's holiday, it will be interrupted.  I would suspend it for those periods. 

5. The final matter for my determination are the costs of the expert report.  This a difficult point - Dr M’s first report cost the Father $5000, which is a lot of money in anybody's language.  The Father is seeking an order that the costs of that report be shared between himself and the Mother.  I must confess, upon initially hearing from the Mother concerning her sources of income, which are Centrelink and child support, it would initially have persuaded me not to make any order for contribution towards Dr M’s costs.  But I understand a property settlement took place between the parties in which she received something like $1 million out of a pool of approximately three, or something less, and that out of that $1 million she has purchased the home in which she is residing for some $810,000, or thereabouts, and that it is unencumbered.  Notwithstanding the fact that all fees for the child at B amounting to something like $10,000, at the moment but will increase, are being paid by the Father, as well as the fact that he is paying some $1400 per month as and by way of child support - persuades me that, notwithstanding the Mother is only on Centrelink benefits and those other matters to which I have referred, I consider that she should pay 40 per cent of the cost of the report, that being a figure of $2000.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  11 July 2008