Sanderson and Sanderson (No 2)

[2016] FamCA 1127

FAMILY COURT OF AUSTRALIA

SANDERSON & SANDERSON (NO. 2) [2016] FamCA 1127

FAMILY LAW – CHILDREN – PARENTING – with whom a child spends time – interim orders.

APPLICANT: Mr Sanderson

RESPONDENT:	Ms Sanderson
INDEPENDENT CHILDREN’S LAWYER	Ms Ferreira

FILE NUMBER: NCC 1455 of 2015

DATE DELIVERED: 23 December 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 9 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd

SOLICITOR FOR THE APPLICANT: Carson & Associates

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT:	Barkus Doolan
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW, Gosford

Orders

1. That the mother and father shall have equal shared parental responsibility for the child B, born … 2004 (the child).

2. That the child shall live with the mother.

3. That the child shall spend time with the father as follows:

   (a)Each alternate week from after school on Friday or 3pm to 8:30pm on Saturday, commencing 16 December 2016; and

   (b)On 25 December 2016 from 9am to 5pm.

4. Without admissions, both parties are restrained by way of injunction from the following:

   (a)Discussing these proceedings or any allegations raised in these proceedings with the child, in her hearing or presence or allowing any other third party to do so;

   (b)Showing the child any document prepared for, or connected with, these proceedings;

   (c)Discussions or questioning the child as to her views regarding future ‘live with’ or ‘spend time with’ arrangements; and

   (d)Denigrating the other parent or members of that parent’s family/household in the child’s hearing or presence.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sanderson & Sanderson (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: NCC 1455 of 2015

Mr Sanderson

Applicant

And

Ms Sanderson

Respondent

REASONS FOR JUDGMENT

1. The Application before me relates to arrangements for B, born in 2004 (12 years of age), to spend time with her father.  The extent of the Application, or at least the urgent part of it, relates to the time that she will spend with the father over Christmas and during the summer school holidays. 

2. The evidence before me indicates that the child has had limited time with her father, with no overnight time since early 2015.  Some accounts place the end of overnight time as even earlier than this but it is not necessary to determine the precise date.  Further, of the time that the child has spent or been scheduled to spend with her father, the mother asserts that there are numerous occasions where it has not taken place.  This is subject of some contest but again does not require resolution because of the scope of the dispute between the parties. 

3. Further, in 2015 a Child Inclusive Conference Memorandum was produced.  the child was interviewed as part of this process and demonstrated resistance to spending time with her father, which softened during the process.  She did however, express specific resistance to spending overnight time with her father and that has not occurred since that time.

4. The father raises on his material issues relating to the potential negative impact that the mother may be having on the child.  These relate in part to assertions that he makes about the mother’s mental health.  At this stage those are not matters that are able to be resolved. 

5. In the context of a limited current relationship it seems important for the child to foster her relationship with her father.  However, the evidence in this case does not support as being in her interests the sudden introduction of bulk time with her father. 

6. The difference in the approach between the parties is that the father seeks two block times with the child, running from Christmas Day through to 31 December 2016 and then for two weeks at the end of January 2017.  In contrast the position of the Independent Children’s Lawyer, that has received at least some limited support from the mother in her affidavit material, proposes an overnight occurring each alternate week along with specific time on Christmas Day.  This presents a more incremental approach to the time that the child might spend with her father.  I am concerned that forcing a longer period of time, without the support of cogent evidence that it would be beneficial to the child in the face of material to indicate both that it is not something that the child is used to nor something that she would be likely to accept at this stage, would not promote the child receiving the benefits of a meaningful relationship with her father, and also runs a risk of an undermining of the relationship such that she may be deprived of those benefits in the longer term.

7. Accordingly, I decline to make orders as sought by the father.  I make orders 1, 2, 3 and 4 of the Minute of Proposed Orders that forms exhibit ICL1 of 7 December 2016.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 23 December 2016.

Associate: 

Date:  23 December 2016