Tardell and Morrisset

[2009] FamCA 372

FAMILY COURT OF AUSTRALIA

TARDELL & MORRISSET [2009] FamCA 372

FAMILY LAW – ORDERS – With whom a child spends time – Variation

Family Law Act 1975 (Cth)

APPLICANT: Mr Tardell

RESPONDENT: Ms Morrisset

FILE NUMBER: MLC 8818 of 2008

DATE DELIVERED: 1 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R.N. Hoult

SOLICITOR FOR THE APPLICANT: Wilckens Roche Pty Ltd

THE RESPONDENT: Litigant in person

Orders

1. That the father have leave to withdraw his contravention application filed 14 April 2009.

2. That my reasons for judgment this day be transcribed and be placed upon the court file.

3. That each of the mother and father be restrained by injunction from attending upon or at the premises of the other until further order.

4. That the orders made on 1 October 2008 be varied as follows:

   (a)paragraph 4(a) be amended to read:

   “during each alternate weekend from 5.30pm on the Friday until 3.30pm on the following Monday to commence on 8 May 2009”;

   (b)paragraph 4(b) be amended to read:

   “on each Wednesday from 5.30pm until 7.00am on the following Thursday morning to commence on 6 May 2009”;

   (c)paragraph 4(e) is deleted;

   (d)paragraph 4(g) is varied for the 2009 year so that the father spends time with the children from 5.30pm on 26 June 2009 until 2.00pm on 4 July 2009; and

   (e)paragraph 5 of the said order is discharged.

5. That all time between the father and the children be suspended on Mother’s Day in each year from 9.00am until 3.30pm on the following Monday.

6. That all time between the father and the children pursuant to paragraph 4(a) and 4(b) as amended by these orders is suspended during school holiday periods and shall resume as if it had not been suspended once the school term resumes.

7. That the children be delivered by the mother to the father at the commencement of each period of time pursuant to these and the orders of 1 October 2008 and returned by the father to the mother at the conclusion of such periods inside the McDonalds Restaurant at L.

8. That all proceedings be otherwise removed from the list of cases awaiting a hearing.

9. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8818 of 2008

MR TARDELL

Applicant

And

MS MORRISSET

Respondent

REASONS FOR JUDGMENT

1. I have before me this afternoon an application by the father to have the mother dealt with for contravention of orders that were made by consent of both parties on 1 October 2008 in relation to two children:  S, who was born in July 2002, and N, who was born in September 2006.  Those orders were vague and almost unenforceable.  Whether that is the basis upon which the problems have arisen, I am not at all sure, having regard to the fact that I have only read the father's affidavit material and heard some very brief comments from the mother about her complaints.

2. The registrar accepted the various minutes and made orders on the basis of some variations to the wording, but it is clear that they were made, or, rather drawn, by one solicitor who seemed to be acting for both parties.  That highlights the folly of one practitioner trying to act as either a mediator or adviser to two parties whose interests are very much in conflict.

3. The allegations in the father’s affidavit are not tested, and I have not asked the mother to respond to them.  However, the relationship between the parties is nothing short of appalling.  There are only two people who can suffer from all of that, and that is these two children.  What these children need is come consistency in the lives that they spend with both parents, as well as knowing exactly when they will spend time with their father and when they will come home to their mother. 

4. In discussions today, using the less adversarial trial process, I have assisted the parties to reach agreement and I propose to vary the orders that were made on 1 October.  I am only tinkering with those orders on the basis that the mother has suggested that the parties go off to mediation, organised by Victoria Legal Aid.  Apparently a grant has been given for some dispute management. 

5. Mr Hoult, on behalf of the father, expresses his client's reservations about all of that, and I must say, having regard to what I have read in the father's affidavit, it would seem there is little prospect of the parties sorting out the issues concerning their parenting responsibilities.  However, hope springs eternal.  What the mother has asked for today is an adjournment.  Mr Hoult has agreed to an adjournment on the basis that in the interim, the orders will be tinkered with.

6. Having regard to the discussions that I had with the parties, the father has gone one step further and held out the olive branch, and withdrawn the contravention.  I have made it clear that my reasons will be transcribed and placed on the court file in the event that there is a future breach by either party.  Having made it clear to both parties that the orders I am about to make are not negotiable, they must both understand that the times mean what they say and the days mean what they say. 

7. The relationship is appalling between the parties, to the extent that there are mutual intervention orders against them.  Those intervention orders, however, do not cover attendance each by the other at the premises in which they live.  The parties have agreed today that there be mutual injunctions in this court under which each will not attend at the premises of the other, and the children will be handed over to the other inside the McDonalds premises at L.  That includes an attendance at 7 o'clock in the morning on a Thursday when the children have spent overnight with the father.

8. I am making abundantly clear to both parties that the times must be kept to the letter.  The orders from October 2007 also provided very little guidance to the parties as to when the various weekends were to occur, and there is little or no provision for times relating to Mother's Day and Father's Day and various holidays.  I am going to only deal with the short term so that the parties can make an attempt at mediation. 

9. The withdrawal of the contravention application today is not to be seen by either party as simply now leaving the orders as they stand.  It is vital that the parties go along to some form of mediation to try and sort out the bigger picture.  It is for that reason that I am proposing to make the orders that I am now doing.  The orders will be varied so that the father will spend time with the children on alternate weekends commencing Friday 8 May 2009 from 5.30 pm on the Friday until 3.30 pm on the following Monday.  The Wednesdays will commence on Wednesday of next week, which is 6 May 2009, and that is to be from 5.30 pm until 7 am the following morning.

10. I will make a specific order that the weekend is suspended on Mother's Day.  That means that at 9 o'clock on Mother's Day, the father will return the children to the mother at the McDonalds restaurant in L.  That means that he misses out on a day and a half, but no doubt there will be swings and roundabouts when Father's Day comes around.  Because of the fact that I am anticipating the parties will sort out the matters before Father's Day, I do not propose to make orders in relation to Father's Day. 

11. Part of the order in October 2008 also provides for the time by the father with S on his birthday.  Sadly, no provision was made in the order for the mother to see S at all on his birthday.  Why that happened escapes me, but it is not desirable for a child not to spend time with both parents on his birthday.  As we all know, birthdays only come once a year, and there is no reason why children should not share in the delights with both parents.

12. I have therefore ordered to cover the birthday, as well as make sure that the school holidays do not create problems.  The father is to have the period from 5.30 pm on Friday 26 June - which is the commencement of the school holidays - and return them to the mother at 2 pm on … July, which is S’s birthday.  It is also the middle of the school holiday period, so that she will thereafter have the period until the end of the school holidays. 

13. I propose to also formally suspend all alternate weeks and Wednesday overnight to Thursday during school holiday periods, and to have them resume as if the suspension had not occurred immediately after school resumes.  The orders in October 2008 also provided a strange order for the father to telephone the mother during the period of time 48 hours prior to the commencement of these various periods, which were already vague in themselves.  How that would work out as to when the 48 hours began, I am not sure.  I have deleted that on the basis that there is no reason for the order now to be there, because each party knows that they must meet the deadlines. 

14. If by some chance there is a problem, then it behoves each of them to get in touch with the other and make specific arrangements.  Otherwise, each would face the prospect of being in contravention of the orders.  One of the issues the parties can address in mediation is how they begin to communicate with one another.  It seems to me the real problem in this case is in fact communication.  On the basis of all of those reasons, I propose to permit the father to withdraw the contravention application and otherwise remove all proceedings from the list of cases awaiting hearing. 

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  12 May 2009