SPANOS & HALLETT (ADDENDUM)

[2015] FamCA 459

FAMILY COURT OF AUSTRALIA

SPANOS & HALLETT
(ADDENDUM) [2015] FamCA 459

FAMILY LAW – CHILDREN – where further submissions invited to define orders – sole parental responsibility – with whom child shall spend time – where time spent with child increases as child commences school – Section 65 Order where compliance with orders be supervised by family consultant – where orders may not be altered by parenting plan pursuant to s 64D.

Family Law Act 1975 (Cth)

APPLICANT: Mr Spanos

RESPONDENT: Ms Hallett

INDEPENDENT CHILDREN’S LAWYER: Ms Reaston 

FILE NUMBER: CSC 507 of 2013

DATE DELIVERED: 18 June 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: By written submissions last received 30 April 2015

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Jacobs

SOLICITORS FOR THE RESPONDENT: Cuthbertson & Co Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms Wilson

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: O’Reilly Stevens Lawyers

ORDERS

1. All previous parenting orders are discharged.

2. The mother have sole parental responsibility for the child, N Spanos, born … 2012 (“the child”).

3. The child live with the mother.

4. Neither party is permitted to relocate the child from the district of Cairns.

5. The child spend time with the father as follows:

   (a)until 23 April 2016 on each alternate weekend (being the weekends when the father has his son V staying with him) from 9:00 am on Saturday morning until 3:00 pm on Sunday afternoon;

   (b)thereafter until the child commences year one (not the prep year) in January 2018, on each alternate weekend (being the weekends when the father has his son V staying with him) from 3:00 pm on Friday afternoon until 3:00 pm on Sunday afternoon;

   (c)Upon the child commencing year one (not the prep year) in January 2018:

   (i)     on each alternate weekend (being the weekends when the father has his son V staying with him) from the conclusion of school on Friday afternoon until the commencement of school on Monday morning;

   (ii)    on each Wednesday from the conclusion of school until the commencement of school on Thursday morning;

   (iii)     for the first half of all school holidays in even numbered years, and the second half of all school holidays in odd numbered years.  The father’s time shall include Easter Sunday and Christmas Day in 2018 and each alternate year thereafter.

   (d)On the following special days:

   (i)     during the Easter period in 2016 and 2017 from 9:00 am Good Friday until 3:00 pm on Easter Sunday (thereafter above applies);

   (ii)    during the Christmas period in 2015 and 2017, from 9:00 am Christmas Eve until 3:00 pm Christmas Day and in the year 2016, from 3:00 pm Christmas Day until 3:00 pm Boxing Day (thereafter 5(c)(iii) above applies);

   (iii)     on the child’s birthday … from 12:00 pm until 5:00 pm in 2015, 2016 and 2017 and all years thereafter when the child’s birthday falls on a day that is not a school day or at a time when the child is otherwise spending time with the father.  Should the child’s birthday fall on a school day that is not otherwise time with the father in accordance with these Orders, the child shall spend time with the father from the conclusion of school until 5:00 pm.

6. For the purposes of order 5 above, handover of the child will occur as nominated by the mother, either at the X Contact Centre, or the child’s day care provider, or by a private nanny service, except for changeovers which occur at the commencement or conclusion of a school, in which case, handovers will occur at the child’s school.

7. The father will be responsible for paying the costs associated with changeovers.

8. Within twenty-one (21) days the mother and father are directed to attend upon an Alcohol and Drug Service for treatment and counselling in relation to their substance abuse issues and they are each required to meaningfully engage with such service or provider as directed, including compliance with any direction to submit to random alcohol or drug testing and to engage in counselling.

9. The mother and the father are required to provide progress reports of all drug and alcohol counselling every three (3) months to the Independent Children's Lawyer.

10. The mother is directed to:

    (a)attend upon and engage in treatment with a mental health professional as recommended in relation to her substance abuse issues, her enmeshed relationship with the father and issues of domestic violence arising from her relationship with the father and her anxieties / unresolved issues arising from the breakdown of her relationship with the father and to attend upon such professional for the period as recommended by that professional.

    (b)provide to any treating professional/s engaged by her for the purpose of this order the psychiatric report of Dr K and each of the Family Report prepared by Ms E and any other material as determined relevant by the Independent Children's Lawyer, including a copy of the orders of this court together with the Reasons for Judgment.  Any such treatment of the mother shall be reportable to this court and the Independent Children's Lawyer is at liberty to communicate with and request progress reports from the mother’s treating professionals. 

11. The father is directed to:

    (a)attend upon and engage in treatment with a mental health professional as recommended in relation to his substance abuse issues, trust issues, his entrenched view that he has acquired a sexually transmitted disease from the mother and his enmeshed relationship with the mother.  The father is to attend upon such professional for the period as recommended by that professional.

    (b)Provide to any treating professional/s engaged by him for the purpose of this order the psychiatric report of Dr K and the Family Report prepared by Mr E and any other material as determined relevant by the Independent Children's Lawyer, including a copy of the orders of this court together with the Reasons for Judgment.  Any such treatment of the father shall be reportable to this court and the Independent Children's Lawyer is at liberty to communicate with and request progress reports from the father’s treating professionals.

RESTRAINTS AND PERSONAL PROTECTIONS

1. The mother and father are restrained from having a blood alcohol concentration in excess of .05% whilst the child is in their care.

2. The father is restrained from taking the child to hospitals and/or doctors or medical treatment of any kind unless it is an emergency or he has obtained the prior express written permission of the mother.

3. In the case of an emergency relating to the child whilst she is in the father’s care, he must advise the mother of the relevant matter at the first available opportunity.

4. Each of the parties be and are restrained by injunction from discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings, with the child.

5. Each of the parties are restrained by injunction from denigrating the other party, the other party’s partner or family members, in the presence or hearing of the child, and from permitting any other person in their presence to do so.

6. Each of the parties are restrained by injunction from questioning the child about the personal life of the other parent, and from permitting any other person in their presence to do so.

OTHER

1. That pursuant to s 65L of the Family Law Act, the parties’ compliance with these orders be supervised by a family consultant until 30 June 2016.

2. The Independent Children's Lawyer generally has liberty to apply.

3. The Independent Children's Lawyer be discharged on 30 June 2016, or such other date as may be ordered.

4. That pursuant to s 64D of the Family Law Act until 30 June 2016, these orders may only be varied by a subsequent order of the court, and not by a parenting plan.

5. Otherwise all extant Applications be dismissed and the matter is removed from the list of active pending cases. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spanos & Hallett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 507/2013

Mr Spanos

Applicant

And

Ms Hallett

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. For reasons delivered 23 April 2015, I determined that the child the subject of these proceedings should live with the mother, who should have sole parental responsibility for her.  I declined to permit the mother to relocate, and determined that the father should spend unsupervised time with the child as detailed in those reasons.

2. In paragraph 143 of those reasons I indicated that I would hear the parties further as to the detail of the proposed orders which were set out at the commencement of the reasons.  Particularly I there dealt with three matters, firstly at what time the child should commence spending alternate weekend time with the father from after school on Friday until Monday morning, secondly as to the age from which the child should commence spending one half of school holidays with the father, and thirdly whether the parties could put forward any acceptable means by which special days (for example Christmas, Easter, Mother’s Day, Father’s Day and birthdays) could be accommodated without requiring the parties to come into direct contact with each other at changeovers.

3. Ultimately the parties made written submissions in relation to those matters.  I will deal with those issues in the order I have listed them above.

WHEN SHOULD SUNDAY OVERNIGHTS COMMENCE

1. The mother proposes that Sunday overnights commence when the child commences school in January 2018.  The father argues for January 2017 being, as I understand it, when the child commences prep as distinct from grade one proper.  The Independent Children's Lawyer supports the mother’s position.  She does so because she says that the commencement of prep will be a substantial change for the child in itself, and further significant change should only take place when she has adapted to prep.  I accept that argument.

2. I am therefore satisfied that the mother and Independent Children's Lawyer’s position on this issue is in the child’s best interests, and I will so order.

SCHOOL HOLIDAYS

1. Likewise the mother proposes that the child should commence spending one half of all school holidays with the father from grade one rather than prep.  The father wants it to commence in prep.  The mother’s argument in this respect mirror those in relation to the first issue.  In my view the mother’s position, which is supported by the Independent Children's Lawyer, reflects the child’s best interests, and I will so order.

SPECIAL DAYS

1. The mother proposes the following orders in relation to special days:

   On the following special days:

   i.During the Easter period in 2016 and 2017 from 9:00am on Good Friday until 3:00pm on Easter Saturday;

   ii.During the Christmas period in 2015 and 2017, from 9:00am Christmas Eve until 3:00pm Christmas Day and in the year 2016 from 3:00pm Christmas Day until 3:00pm Boxing Day;

   iii.On the child’s birthday … from 12:00 noon until 5:00pm in 2015, 2016 and 2017 and all years thereafter when child’s birthday falls on a day that is not a school day or at a time when the child is otherwise spending time with the father.  Should the child’s birthday fall on a school day that is not otherwise time with the father in accordance with these orders, the child shall spend time with the father from the conclusion of school until 5:00pm.

2. The father proposes the following orders:

   Special days

   i.On Christmas Day 2015 and 2017 from 9:00am Christmas Eve until 3:00pm Christmas day, if falling on the father’s weekends or school holidays the child returned 9:00am the following day;

   ii.During Easter in 2016 from 7:00am on Good Friday until 5:00pm Easter Sunday.

   iii.Upon a public holiday falling on the Monday of a father’s weekend the child be returned to the mother at 5:00pm on Monday afternoon.

   iv.The father be able to spend time with the child on her birthday and the child be allowed to attend the father and sibling’s birthday celebrations for three hours on a week day and 8 hours on a weekend.

3. The Independent Children's Lawyer suggests the following orders:

   On the following special days

   i.During the Easter period in 2016 and 2017 from 9:00am Good Friday until 3:00pm on Easter Sunday;

   ii.During the Christmas period in 2015 and 2017, from 9:00am Christmas Eve until 3:00pm Christmas Day and in the year 2016, from 3:00pm Christmas Day until 3:00pm Boxing Day.

4. However that said, the Independent Children's Lawyer notes that she “does not need to be heard about” the mother’s proposal in relation to the child spending time with the father on her birthday noting that the mother is (obviously) comfortable with that arrangement.

5. I am satisfied that the orders sought by the Independent Children's Lawyer are the preferable ones and will make them, save that there will also be the order in relation to the child spending time with the father on her birthday as proposed by the mother.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 18 June 2015.

Associate:

Date:  18 June 2015