TABERNER & JETTA

[2015] FCCA 319

FEDERAL CIRCUIT COURT OF AUSTRALIA

TABERNER & JETTA [2015] FCCA 319

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – equal shared parental responsibility – relocation – unilateral relocation by mother – unilateral action by father in failing to return child after spending time.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MR TABERNER

Respondent: MS JETTA

File Number: SYC 7917 of 2014

Judgment of: Judge Scarlett

Hearing date: 9 February 2015

Date of Last Submission: 9 February 2015

Delivered at: Sydney

Delivered on: 11 February 2015

REPRESENTATION

Counsel for the Applicant: Ms Dart

Solicitors for the Applicant: Reid Family Lawyers

Solicitor for the Respondent: Mr Chesters

Solicitors for the Respondent: Norwest Family Law

UNTIL FURTHER ORDER

1. The Applicant father and the Respondent mother are to have equal shared parental responsibility for the child [X] born on [omitted] 2003.

2. The child [X] is to live with the mother.

3. The father is to return the child [X] to the care of the mother by

   
   

   8:00 pm today.

4. The parties are to do all acts and things necessary to enrol the child [X] at [B] School and thereafter the mother is to do all acts and things necessary to ensure the child’s continued attendance at [B] School.

5. The child [X] is to spend time with the father:

   (a)During the school term from immediately after school on Friday until 5:00 pm on Sunday for three weekends out of four as agreed and in default of agreement for the first three weekends in each four week cycle commencing on 20 February 2015 and thereafter, commencing on the first weekend of each school term;

   (b)For half of each school holiday period as agreed between the parties but in default of agreement:

   (i)The father is to advise the mother by email no later than 48 hours after receiving his work roster of his available dates for school holidays;

   (ii)The father must advise the mother by email of any variations to his roster no later than 48 hours of being notified by [workplace omitted];

   (iii)The father is to nominate the dates when he wishes to spend time with [X] during each school holiday period and within 48 hours the mother is to advise the father of any dates she cannot reasonably accommodate and provide alternative dates; and

   (iv)The father must advise the mother within 48 hours if he is able to meet the alternative dates nominated by the mother.

6. For the purposes of changeover where the child goes from the care of one parent to the care of the other in accordance with the above Orders the father will collect the child from [B] School at the commencement of the weekend time and the mother is to collect the child from the father’s residence at the conclusion of the time.

7. For the purposes of school holiday time the father is to collect the child from the mother’s residence at the commencement of the time and the mother is to collect the child from the father’s residence at the conclusion of the time.

8. Within seven (7) days of the father providing to the mother two (2) completed Application forms to add a parent’s name a birth registration the mother is to sign the form as required and return the completed form to the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 7917 of 2014

MR TABERNER

Applicant

And

MS JETTA

Respondent

REASONS FOR JUDGMENT

1. The Application before the Court is a parenting application commenced by the father in respect of the parties’ child, [X], who was born on [omitted] 2003. The Application was before the Court in my First Court Dates list on Monday morning in which orders were sought as a matter of urgency.  The father’s complaint was that the mother and her partner had unilaterally relocated out of the Sydney area to [omitted], notwithstanding the objections of the father and the fact that the father had indicated that he was commencing proceedings to restrain this from happening.

2. On the other hand, the father made, again, a unilateral decision to retain the child, [X], in his care after the child had been spending time with him by arrangement between the parents.  It is hardly surprising that both parties were taken to task by the Court for their precipitous and unilateral actions and I had some comments to make to the parties’ legal advisors in respect of parties taking the law into their own hands.  I indicated to the parties that some action needed to be taken to restore some sort of order so that the matters could be considered in a more calm and objective manner.  Ms Dart of Counsel for the father and Mr Chesters, solicitor for the mother, both went away and had some discussions.

3. I also ordered that the parties attended a Child Dispute Conference and, at the suggestion of Mr Chesters, which was agreed to by Ms Dart of Counsel, I consented to that Conference being a Child Inclusive Conference.  The Conference is scheduled to take place at 9:00 am on 13 April.  However, there needed to be some orders made with some urgency to restore the situation, as I was not prepared to allow the current situation to continue. 

4. I received, first of all, a set of proposals from the father’s Counsel, which represented a significant change from the father’s original position and were clearly indicative of his having paid attention to the legal advice that he had received.  Mr Chesters has indicated that there was some agreement but not entire agreement and he, later in the afternoon, produced a set of alternative proposals in respect of some but not all of the matters. 

5. It was certainly clear that the parties were agreed on equal shared parental responsibility and on the child remaining to live with the mother.  There were issues, however, about the child’s school, about arrangements for the father to spend time with the child during the school holidays and during the school term.  It was also raised that the father’s name had not been placed on the child’s birth certificate, which does seem to me to be unfortunate as he does play a role in this child’s life.  It is a fact that the parties had an association but did not reside together. 

Conclusions

1. Due to the urgency of the matter, I decided I would consider the competing proposals insofar as they were competing and that I would deliver orders today because some decision needed to be made about getting this child back into school.  I might stress that this is not meant to be an interim parenting case in its entirety.  Certainly, as is known and discussed by the Full Court of the Family Court in Goode & Goode[1]. However, I have taken account of the principles laid down by their Honours in that case and I have given consideration to the matters in section 60B, 60CA, 60CC, 61DA, 65DAA and other matters contained in Part VII of the Act. My aim, however, is to get things back onto a normal footing so that the parties can, with the advice of their solicitors and Counsel, move forward to work out proper arrangements for this boy. It was not just a case of preferring one set of proposals to the other, nor was it a case of preparing an amalgam of competing proposals because they did not sit entirely well with each other.

   [1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

2. I have taken the step of relying mainly on the detailed proposals submitted by the father’s counsel but I took the view some of those orders sought were overly prescriptive and overly restrictive of the mother’s ability to make arrangements for her son, whom it was agreed would be returning to live with her.  That said, I propose now to deliver some orders until further order, which in my view can tide the matter over until after the parties attend the conference with the Family Consultant on 13 April.  I will bring the matter back to Court a little bit later in April so that orders could be made for the future direction of the matter, assuming that it has not resolved in the meantime.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  16 February 2015