Tarrant and Hill

[2008] FamCA 549

FAMILY COURT OF AUSTRALIA

TARRANT & HILL [2008] FamCA 549

FAMILY LAW – CHILDREN - With whom a child spends time - Best interests of child

Family Law Act 1975 (Cth)
APPLICANT:	Ms Tarrant

RESPONDENT: Mr Hill

FILE NUMBER: SYC 1257 of 2008

DATE DELIVERED: 10 July 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Bell J

HEARING DATE: 10 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

FOR THE RESPONDENT: Father in person

Orders

1. The Father spend time with the child from 2.00 pm on Monday, Tuesday and Wednesday until 5.40 pm, the child will be picked up from the child care centre and delivered back to the Mother by the paternal grandmother or her nominee being a person approved by the Mother.

2. The Father to spend time with the child between the hours of 9.30 am and 5.30 pm each Sunday, the Mother is to deliver the child at the commencement of the said period to the paternal grandparents’ residence and pick the child up at the cessation of the period of the spending time with.

3. The balance of the applications are adjourned to the first day of the Less Adversarial Trial before Watts J on 11 September 2008.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1257/2008

MS TARRANT

Applicant

And

MR HILL

Respondent

REASONS FOR JUDGMENT

1. This is an application for a review of an order made by Judicial Registrar Johnston and he made that order on 19 May 2008, notwithstanding that the order front sheet, which includes the back sheet, is also dated 28 May 2008.  I would expect that is when the settled order came out. 

2. In it he made quite considerable and detailed orders in relation to the father spending time with his son, the result of a union between the applicant for a review, Ms Tarrant (the mother), and his father, Mr Hill. 

3. The child was born in October 2006 and thus is a very young, young man. 

4. The review is restricted solely to the question of the time particularised in 2.2 and 3.2; that is, that there are particular times set out there where the father is to spend time with his son, and this is if we take into consideration the fact that he is not working on a full‑time basis, and insofar as 3 is concerned, if he was working on a full‑time basis. 

5. Extensive material has been put before me in relation to this application for review and I do not wish to insult the parties by not going into in depth the allegations and counter allegations. I do not think that that advances the welfare of the child in any way at all and I consider that the allegations and counter allegations, if they are going to be made and persevered with, should be done during a trial and not on an interim basis when I am unable to come to a conclusion with whom the truth will probably lie, since I have not seen or heard the witnesses or any of the witnesses who may attempt to corroborate their evidence by way of cheer squad or otherwise. 

6. What we have here is a boy who is 20 months old.  He is entitled, as the politicians have recognised, he has a right to know both his parents, and the parents here, in this case, quite clearly concede that that right should be looked at and it is only a question of in effect a logistics or time mechanism as to what length of time he should spend with his parents. 

7. The father is, at this stage, or has just recently, as I understand it, entered into some form of comparatively nebulous contract for his work which he tells me from the Bar table ‑ I do not think it appeared in his affidavit ‑ that he is being paid $20 per hour for.  I have decided, in these circumstances, that the restriction placed upon orders 2 and 3, that is working or not working, should be dispensed with because at this stage it appears quite clearly that the father's working time is at his own beck and call.  It is a contract which, as he indicated, he can vary his hours quite easily.  He might want to sit up until two in the morning or something of that nature to do it, but as he said, there are some occasions when he definitely has to work during so‑called working hours.  I mention this because it has been sought by the mother that, in fact, full‑time work be defined. 

8. As a result of the orders I will make, I do not think it is necessary to consider that because I am going to delete any reference to his working full‑time between Monday and Friday and look more towards the benefit of the child experiencing time with his father. 

9. The mother is employed in a job which sometimes requires her to work up to five days per week.  She sometimes goes away in relation with her work but generally she works three days a week.  The child, unfortunately ‑ I say "unfortunately”, I am not critical of the mother because she has to work, the father does not pay anything more than $6 a week by way of child support.  She has to work to support her child and places her child in child‑care for some period during the week. 

10. It is the father's contention that he should be the person, rather than a body of good‑minded people who really are no blood relation of the child, that he should be the person with whom the child spends the time which otherwise would be spent at child‑care.  There may be much in what he says but child‑care is not only looking after children, it is a social event for these children and notwithstanding the fact he is very young, and as the father said, perhaps the youngest there, he does gain, I would think, considerable benefit from his relationship with other children, albeit somewhat older than himself, and I would not totally interfere with his child‑care activities, but I think the father is entitled to say ‘I am here - why can't I look after the child for at least’ ‑ he didn't say that, he wants to do it all the time – ‘for at least some part of the child‑care time?’.  I think there is much in what he says. 

11. Since I am dismissing any restriction upon him working, I have to consider what I believe is on an interim basis only, and this matter is coming on for a first day LAT on 11 September before Le Poer Trench J.  This is only a stopgap order until such time as two things take place.  One, is the first day of LAT to which I have referred, and another one, which is very important, is the family consultant who will be interviewing the people on the 17th and 20th of this month. 

12. As I have said in argument, I have found the family consultants of great assistance to judges in these matters.  They seem to get to the crux of the matter much more quickly than the first day of a LAT does, and they really know what is going on and I would sincerely hope that both these parties listen quite intently to what the family consultant says.  They are not here to make judgments or anything of that nature but they are to assist, and they do.  I have found them tremendously successful in resolving matters as difficult as this, and this is a difficult matter. 

13. The child has that right, to know both parents.  Consequently, I believe that the father should be entitled ‑ and an offer has been made by the mother ‑ to some time during the week in which the child is in child‑care. 

14. It has been offered, after discussion with myself, that the father take the child from the child‑care centre at about 2 pm on Monday, Tuesday and Wednesday and that the child be returned to the mother on Monday, Tuesday and Wednesday, at 5.45, by the paternal grandmother.  It appears that the father, notwithstanding the fact that he would dearly like to have much more time, is not totally averse to that order but he would request that the child see his mother and father reacting comfortably with each other by him being able to return the child and not his mother. 

15. With great respect to him at this stage, as a result of the material I have read, there is some view which people other than myself and perhaps on a further investigation would find, that the relationship between the mother and the father is not all that could be desired; that there is some antagonism engendered by whatever we know by one to the other, or by both of them, and the child seeing a reaction of his parents to each other is not to the benefit of him at all. 

16. I am not going to be hearing the matter but at this stage I do not believe that his welfare would be advanced at this stage by the father returning the child to the mother.  The normal course will be that the paternal grandmother, and she does a good job - good on her.  Without grandmothers, I don't know what we would do.  She will return the child to the mother at the end of that period. 

17. There is one further period and that is the weekends.  The father has contended once again that he thinks that the parties should be able to resolve these difficulties and that he wants to be flexible in that the mother has offered, of course, Sunday from 9.30 p.m.  He says ‘Why can't we sort of talk about this?’ and perhaps the mother might say ‘Look, I'd like to have the kiddie for Saturday and Sunday and then, if that happens, you can have him for Saturday and Sunday the next weekend’. 

18. In the Garden of Eden that would be perfect before the apple or the snake came along, but unfortunately, this is the Family Court and nothing is perfect in this Court.  For 30 years I've seen people fight over children.  I'm not saying this is the case here.  They use them as weapons against each other and it is quite tragic.  If they were able to discuss things rationally and come to a sensible conclusion there would be no need for a Family Court.  It is here and it will be here for a long time to come because we are dealing with people and you can't legislate about human emotions.  I would think this endeavour on the part of the father would be covered by my making a subsequent order; that is, at all such other times the father spends time with the time as may be agreed upon between the parties. 

19. I think that the father should have time on the weekends.  I initially thought that perhaps it would be better to give them both a full weekend free but the submissions by Mr Franks on behalf of the mother in relation to the time lag or the length of time that she may be away from the child convinces me that the father should spend time on Sundays between the hours of 9.30 a.m. and 5.30 p.m. 

20. As I have said, I do not wish to make any order in relation to what "full‑time work" means.  That would be a minefield.  Therefore, the order will be that the father spend time with the child from 2 pm on Monday, Tuesday and Wednesday until 5.40 p.m.  The child will be picked up at the child‑care centre and delivered back to the mother by the paternal grandmother or her nominee, being a person approved by the mother. That means she is not stuck all the time. 

21. Further, that the father is to spend time with the child between the hours of 9.30 am and 5.30 pm each Sunday.  I order that the mother do deliver the child at the commencement of the said period to the paternal grandparent's residence and pick the child up at the cessation of the period of spending time with the father.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  17 July 2008