Richards and Whipp (No. 3)

[2009] FamCA 735

FAMILY COURT OF AUSTRALIA

RICHARDS & WHIPP (NO. 3) [2009] FamCA 735

FAMILY LAW – CHILDREN – INTERIM – time child is to spend with her father

APPLICANT: Mr Richards

RESPONDENT: Ms Whipp

FILE NUMBER: SYC 2398 of 2007

DATE DELIVERED: 10 August 2009

PLACE DELIVERED: SYDNEY

PLACE HEARD: SYDNEY

JUDGMENT OF: WATTS J

HEARING DATE: 10 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Perla

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Meyer Pigdon

Orders

1. The child … born … March 2007 (“[the child]”) spend time with the father as follows:

   1.1.Friday 21 August 2009 from 3 pm to 4.30 pm, and during that occasion the mother and, if she desires, either her father or her sister, but not both, be present; or alternatively if the mother is not to be present the mother may nominate two persons familiar with the child, with at least one of them to have a significant attachment to the child, who can be present, neither of the two persons is to be the maternal grandmother;   

   1.2.Saturday 22 August 2009, from 9 am to 11.30 am;

   1.3.Monday 24 August 2009, 8.30 am to 12.30 pm;

   1.4.Wednesday 26 August 2009, 8.30 am to 12.30 pm;

   1.5.Friday 28 August 2009, 9 am to 5 pm;

   1.6.Sunday 30 August 2009, from 8.30 am to 12.30 pm;

   1.7.Tuesday 1 September 2009, 8.30 am to 12.30 pm;

   1.8.Thursday 3 September 2009, 9 am to 5pm.

2. As an enlargement of order 2 made on 16 June 2009, in the event that the mother is not herself present, the mother may nominate two people familiar with the child with at least one of them to have a significant attachment to facilitate the care periods in orders 1.2 to 1.8, and to be present for the first 25 minutes of each of those visits.  That person is not to include the maternal grandmother.  During the child’s time with the father, the father may nominate one other person to be present other than himself, his parents and his wife.

3. Within seven days from the date of these orders, the mother provide the information requested by the father in relation to the child’s treating doctors and attendance at a daycare centre, as requested in the letter from Meyer Pigdon dated 23 June 2009.

4. On the father’s return to the United States on about 4 September 2009, the mother will do all acts and things to facilitate communication between the child and her father and other members of the father’s household and immediate family via Skype on at least two occasions each week, as agreed between the parties in writing, and failing agreement, between 8.30 am and 8.45 am each Monday and Thursday, Sydney time.  This communication is to last for approximately two minutes.

5. As part of facilitating the communication referred to in order 4, the mother is to secure proper communication equipment, including a camera and any necessary software for the computer, and upon the provision of an invoice for that equipment, the father will reimburse the mother for the cost of that equipment.  

6. The wife’s application for costs of today be dismissed. 

7. Within 7 days the solicitor for the mother will inform the husband and my associate by email as to whether or not the mother opposes an order being made pursuant to the provisions of s 69VA Family Law Act.

8. In the event that that application is opposed by the mother, leave is granted to the solicitor for the mother to forthwith inspect the documents produced under subpoena from Dr Y and from W Hospital.

9. In the event that within a further period of 7 days the solicitor for the mother raises no further objection to the inspection to that material the father has leave is granted to the father to inspect that material. 

10. If there is an issue about the inspection of documents referred to in order 8, either party has liberty to relist the matter on 7 days notice. 

11. Leave is granted to the parties to inspect material produced from Department of Community Services and Department of Immigration and Citizenship and Qantas. 

12. Within 48 hours the lawyers for the father provide the lawyers for the mother a copy of the order they would propose for the commissioning of a Chapter 15 report. 

13. In the event the parties are able to reach agreement in relation to the form of the order for a Chapter 15 report, a consent minute will be provided by email to my associate and that order will be made in chambers.

14. In the event that no agreement can be reached, the matter will be set down at 10.30am on 1 September 2009. At that time the s 69VA Family Law Act (“FLA”) application and the disputed application in relation to the Chapter 15 Expert report will be heard.

15. If the mother opposes an order being made under s 69VA FLA, by 25 August 2009 both parties file and serve any affidavit they seek to rely upon in relation to the s 69VA FLA application and any opposition to an order being made under that section.

16. Pursuant to s.65DA(2) and s.62B, 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:

1. The father has made an application for the appointment of a psychiatrist in the terms of paragraphs 9 through to 15 of the short minutes of orders filed in court today. 

2. I have indicated that it is my view that it is appropriate that a Chapter 15 Expert be appointed for the purposes of carrying out a family assessment, which assessment amongst other things would include some comment by the expert as to the mental status of both parents. 

3. The lawyer for the mother seeks an adjournment to obtain instructions as to whether or not her client will consent to the appointment of a Chapter 15 Expert and to an order pursuant to s 69VA FLA.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2398 of 2007

MR RICHARDS

Applicant

And

MS WHIPP

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a further day in court where the parties are fighting about their daughter who is two years and five months of age

2. In this matter, there are a number of applications that are made before me today.  The primary one arises out of the circumstance that the parents again have not been able to reach an agreement as to what times and in what circumstances the child should spend time with her father when he comes from the United States to Australia later this month and early next month. 

3. Both parties have filed affidavits which detail what happened between 17 June and 28 June and on the two prior occasions the child saw her father in June 2009, before I made orders on 16 June 2009.  The father’s affidavit pays no regard to the order that I made in relation to the length of the affidavit.

4. I indicated when I gave my reasons on 16 June 2009 that I had hoped the orders I made on that day would provide some guidance to the parties as to the types of orders that should be made on an interim basis.  Those orders were substantially in accordance with the recommendations of Ms B, but as my reasons of 16 June make clear, other matters are taken into account. 

5. Having read the affidavits of the parties, it seems that they have some differences in perception as to how well the child’s time with her father went in June, but they agree that there was no significant incident of concern such as is said to have happened on the prior occasion.

6. Counsel for the father, has on a number of occasions in this matter, requested that a “ground hog” day style order not be made.  Ms B has indicated that she believes, in circumstances where the child is not seeing her father face to face on a regular basis, that there needs to be some facilitation period on each occasion that contact takes place.  I find at this stage, given the break in the time that the child has between the time she sees her father, that some reintroduction phase has to take place. 

7. The mother has apparently failed to comply with orders that I made on the last occasion by having more than two people present.  I have asked her solicitor to reinforce to her the terms of order 2 that I made on 16 June 2009.

8. I do not intend to re-make the orders that I made on 16 June 2009.  I will be enlarging those orders today but the fundamental scheme will remain in place in terms of the mother bringing people with her.  She has requested that in lieu of herself, there be an order that she be able to nominate two people familiar with the child, one of whom has a significant attachment to the child and it is agreed that is an order I can make by consent.  I assume that that person is not to include maternal grandmother which was a condition which was previously sought and granted. 

9. It is important that there be a shorter initial introduction time and that that builds up then.  The family consultant’s suggestion was that the full day happen once a week approximately.  We were not able to achieve that last time because of the configuration of the days that were left, and the mother has commented that it was not ideal that I granted Friday and Sunday as two full days consecutively, but that was all that could be fitted in to the arrangement for the last occasion.  There are more days this time, and so the two full days can be more appropriately spaced.  I will not repeat any of the other matters that I referred to in the reasons that I gave on 16 June.  Those matters are still pertinent and I incorporate what I said then into these reasons. 

10. In relation to the mother’s application that the father be restricted in some way in respect of the persons that he has present when he is with the child, an order is consented to by the father that he may nominate only one other person to be present other than himself, his parents and his wife.  I find that is a reasonable order to make and I do not think it is appropriate to make an order which would mean only one other person beside the father can be present.

11. There is no proper explanation given by the mother’s lawyer as to why the request by the father in the letter dated 23 June 2009 has not been complied with.  The request is for the father to be given information about the child’s treating doctors and in relation to what day-care centre the child is attending.  The father also sought information about the child’s day-care on the last occasion the matter was before me. 

12. It seems to me inexplicable on any evidence that I have seen in this case, that the mother would have an objection to the father knowing what doctors the child attended; times the child went to day-care and where she went. 

13. The father has made an application that between 8.30 am and 8.45 am the mother do everything that is necessary to facilitate communication with the child and her father via Skype on two occasions each week, Mondays and Thursdays.  The submission is made that should not happen because it is disruptive of the child’s routine and getting out of the house and getting on with the day, I have not got any evidence about what those arrangements are.  I do not even know what days she goes to day-care or what times, but on the evidence I have got, she does not get up until 8, and the concession seems to have been made that the child would still be around between 8.30 and 8.45 in the household.  She would have had a sleep, she would be brighter, and more awake than at the beginning of her day.  What is being sought is a couple of minutes recognition contact on Mondays and Thursdays using a computer facility.  The father would ring in.  In my view, it is totally consistent with what is in the child’s best interest in attempting to develop a relationship with her father, and have that type of contact with him on a bi-weekly basis.

14. As part of facilitating this communication, I will order that the mother secure proper communication equipment, including a camera and any necessary software for the computer, and upon the provision of an invoice for that equipment, the father will reimburse the mother for the cost of that equipment and software.

15. Any argument between the adults about the payment in respect of that reimbursement is not to be a reason why the order is not otherwise implemented in terms of the child having communication with her father.  It is not a matter of contest that the child is currently verbal in terms of her ability to communicate.  She can talk.  I take into account the father’s evidence that she has some familiarity with the use of this type of facility.  I do not accept the mother’s lawyer’s submission that there is no benefit in terms of assisting attachments by using Skype in this way.

16. I note that the mother’s lawyer has sought a change in the order that I made on 16 June 2009 so that the father gives two months’ notice instead of one month’s notice of him coming to Australia.  The reason proffered by the lawyer for the mother was that it will give the parties longer to be able to reach agreement as to the precise times that the child will see the father.  I do not find that a compelling argument.  If they cannot agree in a month, given the history of the parties’ ability to agree on anything in this matter, it is unlikely they are going to agree in two months, so I will not change that order.  To do so would fetter the father without good purpose. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  12.8.2009