Speirs and McCarthy

[2016] FamCA 539

FAMILY COURT OF AUSTRALIA

SPEIRS & MCCARTHY [2016] FamCA 539

FAMILY LAW – CHILDREN – PROCESS AND PROCEDURE - ADJOURNMENT

APPLICANT: Ms Speirs

RESPONDENT: Mr McCarthy

FILE NUMBER: CAC 254 of 2013

DATE DELIVERED: 21 June 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 21 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT: Dobinson Davey Clifford Simpson

Orders

1. I make orders per the terms of consent marked as Exhibit F1 noting that at Order 1.c. I decline to restrict the order to ‘in Canberra’, those words being crossed out on the document that has been handed up to me. 

2. The matter is otherwise adjourned for direction or further hearing if an application is filed in a timely manner to Tuesday 27 September 2016 at 9:30am.

3. If either party is to file a further application they seek to have heard on that date any application is to be filed by 16 September 2016 with a response by 23 September 2016.

4. I direct that the solicitor for the father will send a typed electronic copy to my associate by close of business Friday 24 June 2016.  In doing so I will amend the previous order I have to made as to form, permitting orders of the same substance to be filed reflecting a mutual obligation upon each of the parents. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Speirs & McCarthy 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 CANBERRA

FILE NUMBER: CAC 254 of 2013

Ms Speirs

Applicant

And

Mr McCarthy

Respondent

REASONS FOR EX TEMPORE JUDGMENT

1. The children, B, born in 2007, and C, born in 2010, are currently the subject of Consent Orders made on 17 February 2014 and Consent Orders made on 8 June 2016. 

2. The mother has filed a Notice of Discontinuance however the father maintains his application at present.

3. Both parties are content for the proceedings to be adjourned for a period of time that will allow two things to occur. 

   a)Some form of family counselling to take place; and

   b)To see how the mother’s medical condition stabilises. 

4. The immediate outstanding matter related to what the care arrangements should be if the mother is unable to care for B and C.  The parties have agreed that in the event that either of them is unable to care for the children that the other parent will be the first option. 

5. Terms setting out that agreement are Exhibit F1 in today’s proceedings.  The outstanding issue relates to whether or not there ought to be restraint in the event that the mother and father are unable to care for the children that restrains the mother from making care arrangements other than in Canberra.

6. The history of the proceedings is such that the mother has experienced medical issue that have required the intervention of her parents to assist with the care of each of the children.  These interventions occurred primarily during periods of time when Mr McCarthy was overseas with work and, it seems sometimes at reasonably short notice given the degree of pain the mother was suffering.  The mother’s parents have indicated that the travel to Canberra has become heavily burdensome for them, their main place of living being D Town in Victoria.  On the last occasion that their assistance was sought the mother travelled to D Town and sought to retain the children in D Town for a period of time whilst she underwent treatment.  She has now returned from D Town somewhat earlier than she had anticipated. 

7. The father, not unreasonably, says that if neither of the parents are able to care for B and C then it is beneficial for B and C to be in Canberra and to find stability in being in Canberra particularly stability as to attendance at school.  On the last occasion that they were taken to D Town it is asserted that they missed some school.  He asserts that he has support networks, even if the mother does not, that could facilitate care for the children in Canberra.  I do not know what those support networks are and the mother has indicated she does not know what those support networks are but is interested in understanding who they might be.  The mother accepts that ideally the children would remain in Canberra if care arrangements could be made available for them. 

8. It is an aspect of parental responsibility that a parent can determine by who and where a child is cared for.  Each of these parents has exercised parental responsibility and the mother has been called upon to do so in a sense greater than that anticipated in the orders while the father has been overseas.  As I read the affidavit material he makes no complaint as to the exercise of parental responsibility by the mother other than perhaps an implicit complaint in the removal of the children to D Town.  Other than this instance which was fuelled by the necessity for the mother to receive treatment there seems to be no criticism of the mother in the exercise of parental responsibility.  I do not propose to interfere with her exercise of parental responsibility when the children are to be in her care and the father is not available to take the care of the children while there is some benefit that can be seen in retaining the children in Canberra if that is able to be done, there is also benefit to the children being under the care of Ms Speirs’s parents with whom they are familiar it will be a matter for the mother to determine if the father is not available to care for the children what particular care arrangement will be in their best interests nothing before indicates to me that she will fail to do so.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 21 June 2016.

Associate: 

Date:  22 June 2016