Timmins and Timmins

[2007] FamCA 1550

FAMILY COURT OF AUSTRALIA

TIMMINS & TIMMINS [2007] FamCA 1550

FAMILY LAW – CHILDREN – With whom a child lives – Orders – Variation – Where prior consent orders operating satisfactorily – Where child starting school making prior orders inoperable – Where mother has difficulty with concept of time – Arrangements by agreement or as further ordered by the Court – Liberty to apply if mother fails to pick up or deliver child at school – Orders varied

Family Law Act 1975 (Cth)
APPLICANT:		Ms Timmins

RESPONDENT: Mr Timmins

FILE NUMBER: BRF 2535 of 2005

DATE DELIVERED: 2 November 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 2 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kirkman-Scroope of Counsel appeared for the Applicant Mother

SOLICITOR FOR THE APPLICANT: Emerson Family Law Solicitors

SOLICITOR FOR THE RESPONDENT: Mr Goodingham, Solicitor of Pippa Colman & Associates, Solicitors, appeared for the Respondent Father

SOLICITOR FOR INDEPENDENT

CHILDREN’S LAWYER:

Ms Davies, Solicitor appeared for the Independent Children’s Lawyer

Orders

1. Order (16) of the Order of 2 February 2007 be vacated and the Mother be able to drive with the child, E born … December 2002.

2. The child’s schooling is to be as nominated by the Father.

3. The Mother to spend time with the child as agreed between the parties in writing but in the event the parties are unable to agree from 4.00 pm Friday until 8.00 am Monday three weekends out of four commencing the weekend of 2 November 2007.

4. Once the child commences prep-school in January 2008 the Mother is to spend time with the child during the school holidays as follows:

   a.for three weeks at Christmas starting just before the New Year and going through until the end of the school holidays; and

   b.the second half of the June/July and September school holidays

   with the Mother to collect the child after prep-school on Friday and return the child to prep-school on Monday morning.

5. Weekend contact is suspended during any school holidays.

6. The Mother’s Application in Form 1 filed 5 September 2005 is adjourned to a date to be fixed before a Registrar for directions.

7. Liberty to apply on seven (7) days notice.

8. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF2535 of 2005

MS TIMMINS  

Applicant

And

MR TIMMINS  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The operative orders in place were made by consent on 19 March this year. They provided for an increase in the mother's time with E over three different phases described as phase 1, phase 2 and phase 3.  Phase 3 which is currently operating provides for the mother to have her son from 8.00 am Wednesday until 5.30 pm Thursday in one week and then from 8.00 am Friday until 5.30 pm Sunday in the following week.  That arrangement by and large has been working satisfactorily.

2. The difficulty with the current orders is that E is 4 and starts prep-school next year in January.  The mother will not be able to spend Wednesdays and Fridays with him.  The father's proposals when he arrived at Court today, as I understood it, was to cease the Wednesday overnight time so that the mother would only be having alternate weekend contact presumably Friday afternoon until Sunday afternoon.  The mother through her counsel today proposed that there be time spent week about. 

3. I have read the various reports which have been produced.  There is a report of an occupational therapist Ms V, a report of Family Consultant Ms D and there is a report of a psychiatrist Dr M.  There is other material before the Court.  There is a considerable body of subpoenaed material.  I expect there has been an order for the parties to inspect that, but I am prepared to make such an order if they have not had leave to inspect.

4. I turn to consider Ms D's report dated 7 March this year. She is a very experienced family consultant.  She visited inland Queensland where the parties live in the North West area.  She observed the parties with the child in the respective houses.  She made a recommendation that the mother have the child three weekends out of four and half school holidays.

5. In the order of 19 March this year there was provision in paragraph 8 for the parties to file any updating affidavit material.  Apparently because the mother's former lawyer at the firm she is at left she did not file any material.  The father's material came in very late, it only came in late last week.

6. In matters such as this where we are adopting the less adversarial process with the hearing spread over a period of almost 12 months it is still necessary to have continuity of legal representation and it is something that is desirable. 

7. There is mild to moderate criticism of the mother's parenting ability in the father's affidavit.  I do not think it amounts to much.  In any event the mother rejects the criticism.  I really am not in a position to determine those issues on today's date.

8. I accept that the parties are locked in at the present time.  They each want the primary care of the child.  I am confident I have loving, caring parents and the child would be appropriately cared for and lovingly cared for in either household.  Here, fortunately, bar the mother's concept of time which is subject to challenge by and large, the criticism is of a very mild nature.

9. The father's legal representative appreciates that the father's stated position in his affidavit could be altered and they would suggest changing the date mid-week from Wednesday to Thursday.  I am not sure that that would solve the problem once the child starts school.  I do appreciate that the orders need to be changed because the mother cannot have Wednesday in one week and all day Friday in a few months time once the child starts school.  I do like to have stability in the child's arrangements.  I do not like to tinker with the orders as sometimes happens in this jurisdiction where parties are often seeking minor variations.

10. What I propose to do is I will put in place an order in general terms that the mother spend time with the child at all such times that the parties may agree and, failing agreement, as may be further ordered by the Court.  So that if the parties wish to change weekends or change arrangements they will be free to do so.

11. I propose to lift the prohibition on the mother's driving with the child.  The mother has been driving for 10 years.  She drives regularly, without incident seemingly.  She has produced a certificate from a driving instructor in her local area who says that she is able to drive competently.

12. What I propose to do is to follow the recommendation of Ms D with a few minor adjustments.  I do not want to make a final finding, particularly in relation to the report of Ms V, but I accept that the mother does have some difficulties with time.  I accept she has family support and she has developed skills and mechanisms for dealing with her sense of time and that is all to her credit.  The mother can spend time with the child from after school Friday until the start of school Monday and I will make that three weekends out of four. 

13. So she will be responsible for collecting the child after school and returning the child to school.  This will enable her to be able to have some interaction with the school.  She will have to try and make arrangements with the husband as to whether she has school uniforms and things of that nature in her possession, but I am confident they are relatively minor problems.  If, for example, the child has gone to school wearing the uniform the father has provided she should make sure that it is washed and returned.

14. There is no contest other than the fact that the father should have specific times at Christmas I think from 8.00 am on 24 December through until 5.30 pm on 27 December.

    RECORDED:  NOT TRANSCRIBED

15. Well, that is during the week anyway.  Now, I am not making an order for the current Christmas school holidays until I have had a chance to look at this.  Easter the child will remain with the father.  I am quite hopeful the matter will be disposed of, if it is not settled, by February or March of next year, but in the event that it is not I make an order that the mother have the second half of June/July, September and Christmas holidays.  So the parties do not have to come back if they want to keep the arrangements going.  The mother can have one week of the June/July holidays, one week of the September holidays and three weeks at Christmas, which would be starting just before the new year and going through till the end, that is the normal period.

16. Now, if the mother is late collecting the child on a Friday it will be very traumatic for young E, likewise if she is late delivering him to school.  Schools keep records and roll calls.  If the child is late it will come to the attention of the father very promptly.  I will put in a liberty to apply provision that the parties can bring this matter back on, particularly if there is a failure on the mother to collect the child on time punctually on Fridays or Mondays. I am fully aware of the difficulties she labours under, but she assures the Court that there are no problems; she has mechanisms and skills to ensure she is punctual.

17. So in summary, I think the mother's proposal for week about is too sudden, too dramatic, too disruptive and not desirable at this point in time.  I will put these orders in place.  I do not want to have orders running from now until January and then changing.  I will put the orders in place now and we will see how they work.  So I appreciate it is going to be disruptive for the father that he misses out on three weekends out of four, but he is not working at the present time and has flexibility for his quality time with E regardless.

    RECORDED:  NOT TRANSCRIBED

18. We will leave it on that basis, that the father can select the school.  The child is to be enrolled at the school nominated by the father for the prep year.

    RECORDED:  NOT TRANSCRIBED

19. I will list this matter for further directions before a Registrar. 

    RECORDED:  NOT TRANSCRIBED

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate

Date:  2 November 2007