S and S
[2006] FMCAfam 372
•3 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & S | [2006] FMCAfam 372 |
| FAMILY LAW – Interim orders – child’s best interest – stability – current arrangements to continue – shared care – serious allegations raised late by mother – late filing of affidavit containing allegations – final hearing vacated – costs thrown away ordered against mother – matter transferred to Family Court. |
Family Law Act 1975 (Cth), s.117
| Applicant: | JS |
| Respondent: | RS |
| File Number: | CAM 1226 of 2005 |
| Judgment of: | Mowbray FM |
| Hearing date: | 3 July 2006 |
| Date of Last Submission: | 3 July 2006 |
| Delivered at: | Canberra |
| Delivered on: | 3 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Richards |
| Solicitors for the Applicant: | Nicholl & Co |
| Counsel for the Respondent: | Mr Nash |
| Solicitors for the Respondent: | Galland Elder Lulham |
ORDERS
IT IS ORDERED, PENDING FURTHER ORDER
That the parents share equal parental responsibility for the child DS born December 2000.
That the child live with both parents as follows:
(a)Until the mother shall commence maternity leave, the child will live with the father the night preceding the mother commencing her first shift with the father to collect the child from her school or by the mother delivering the child to the father no later than 5:00pm until the morning after the mother concludes her last shift in accordance with the mother’s base duty shift roster by the mother collecting the child from her school or as agreed between both parties. The child will live with the mother at all other times.
(b)Following the mother commencing maternity leave, the child shall live with the father each alternate week from after school on Friday until the commencement of school the following Friday.
(c)That any exchanges will take place in the Goulburn area unless otherwise agreed by the parties.
(d)At any other times as agreed between the parties.
That the child will spend time with the mother and father on Christmas day as follows:
(a)In odd numbered years with the father from 5.00 pm on Christmas Eve until 1.00 pm on Christmas day.
(b)In even numbered years with the mother from 5.00 pm Christmas Eve until 1.00 pm on Christmas day.
That should the mother change her shift times this will not affect the living arrangements which will be based on the mother’s base duty shift roster as posted by her employer unless otherwise agreed between the parties.
That the mother will advise the father 14 days prior to any change to her shifts.
That the mother provide the father with a copy of her base duty shift roster within 48 hours of receiving her copy from her employer.
That the father shall advise the mother in the event that he is required to travel for work overnight.
That each parent shall advise the other parent as soon as practicable of any overnight or greater absences from Goulburn in the periods whilst the child is living with them and will ensure that the other parent will have first option to care for the child in these periods.
That neither parent is to take the child outside the Goulburn‑Mulwaree Shire for a period longer than three days without advising the other parent at least seven days in advance, except during school holiday periods.
That while the child is living with either parent during school holiday periods away from their usual place of residence that parent shall provide a contact telephone number and address to the other parent.
Unless otherwise agreed the child shall spend time on the Mothers Day weekend with the mother and the Fathers Day weekend with the father regardless of where she would otherwise be living in accordance with these orders.
That the father and the mother share jointly the responsibility of decision making for the long term care, welfare, education and development of the child.
That the child shall communicate via telephone with the parent with whom she is not living on her birthday and the other parent’s birthday.
That both parents shall do all things necessary to authorise the child’s school to ensure that the other parent receives copies of school and pre-school reports, newsletters and other information from the school to parents.
That both parties shall keep the other party informed of all significant social, sporting or religious events in which the child is involved to facilitate that parent’s participation.
That each parent will inform the other of any serious illness or injury to the child requiring medical treatment, as soon as practicable following the onset of the illness or injury, and consult the other prior to any medical treatment, except in an emergency.
That each parent is free to visit the child in the event that the child is ill or injured.
That each party inform the other of the name, address and telephone number of any medical practitioners from whom the child has received treatment and shall authorise that medical practitioner to release any information requested by the other parent in relation to the heath, wellbeing or treatment of the child.
IT IS FURTHER ORDERED
That the father is granted leave to file the following subpoenas:
(a)NSW Department of Community Services
(b)NSW Police Service
(c)Dr John Egan
(d)Orana Preschool
(e)St Peter and St Paul’s Primary School Goulburn
(f)NSW Ambulance Service
That the mother is granted leave to file the following subpoenas:
(a)NSW Ambulance Service
That the Mother pay the costs thrown away of the Father in the sum of $4,500 within one month.
That these proceedings be transferred to the Canberra Registry of the Family Court of Australia.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 1226 2005
| JS |
Applicant
And
| RS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript.
In this case there are two matters for me to decide as a consequence of my decision to vacate the dates for the hearing for final orders.
Interim living arrangements for DS
The first concerns interim living arrangements for DS.
DS is five and a half years old. The affidavits that I have before me contain conflicting accounts as to precisely what has been the pattern for her living arrangements in the past.
Although some terms are used fairly loosely in the documents, it appears that DS has lived with her father for most of the time when her mother has been on roster. Again, I say there is some dispute about this.
I have also been taken to a schedule for the period from January to May this year in the mother's affidavit filed on 22 June 2006, which, if correct, means DS spends roughly 60 per cent of nights with the mother and 40 per cent with the father.
But the father disputes these figures. He says that DS has lived with him from the night preceding a rostered day for the mother until the morning after the mother concludes her last rostered shift.
On the evidence I am unable to reach a definite view as to the precise division of time between the two parents.
The other contentious issue which is raised in a substantive way is in the mother's affidavit filed as late as 22 June 2006. It relates to allegations of sexual abuse in about May 2004. This is then tied in to some extent by the mother with other allegations about DS not wanting to spend time with her father, having a red bottom and having secrets that she does not want to tell the mother.
It is because of the late notice by the mother that she would be raising these allegations in a serious and substantive way, particularly those about the May 2004 incident, that I have vacated today’s final hearing.
I note that the mother, notwithstanding these allegations, still puts forward an arrangement which involves DS living with the father for three out of four weekends and spending each Wednesday evening with him. In these circumstances I am not prepared to place a great deal of weight at this time on these allegations, untested as they are.
It therefore seems to me that the appropriate arrangements are the ones which are sought by the father on an interim basis. On their face they appear to provide greater stability for DS. They allow for the current arrangements to continue until the mother stops work. Then DS should live with each parent on a week about basis until the matter is resolved in the Family Court.
In my view, on the contested evidence before me, this represents DS's best interests.
Costs thrown away
The second issue relates to costs.
Notwithstanding the valiant attempts by Mr Nash for the mother, I am clearly of the view that the reason that this matter is not going ahead today is because of the filing of the affidavit of the mother on 22 June 2006 containing serious allegations on which she seeks to rely.
I am conscious of the fact that the father also filed late. But this affidavit of the mother was not only late, it also raised serious issues which while mentioned in the past had not been put forward in any substantive way. These are issues that I have to give the father an opportunity to meet.
In these circumstances, noting the provisions of s.117 of the Family Law Act 1975, it is appropriate that I make an order for costs thrown away by the father as a result of vacation of the hearing dates. The circumstances justify such an order.
The order that I propose to make is somewhat less in quantum than the costs sought by the father.
The mother shall pay the father’s cost thrown away in the sum of $4,500.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 20 July 2006
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