Tomlinson and Conlan (No 3)

[2019] FamCA 892

FAMILY COURT OF AUSTRALIA

TOMLINSON & CONLAN (NO. 3) [2019] FamCA 892

FAMILY LAW – CHILDREN – With whom a child spends time – School holiday periods – Special days – Interim consent orders

APPLICANT: Ms Tomlinson

RESPONDENT: Mr Conlan

INDEPENDENT CHILDREN’S LAWYER: Ms Dwyer

FILE NUMBER: AYC 59 of 2013

DATE DELIVERED: 26 November 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 26 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Robinson + McGuinness Family Law

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, NSW

Orders

BY CONSENT IT IS ORDERED, PENDING FURTHER ORDER:

1. That Orders 5 to 7 of the Orders made by His Honour Justice Gill on 7 June 2019 be discharged.

2. That during school terms, X shall spend time with the mother as agreed in writing and failing agreement each fortnight, as follows:

   2.1.From the date of these Orders until the conclusion of Term 4, 2019, each alternate weekend from the conclusion of school or 3:30pm on Friday until the commencement of school or 9:00am on Monday;

   2.2.From the commencement of Term 1, 2020, each alternate weekend from the conclusion of school or 3:30pm on Thursday until the commencement of school or 9:00am on Monday; and

   2.3.For the purposes of Order 2.2, X’s time with the mother commences from the first Thursday of each term.

3. That during school term holidays X spend time with the mother and father as agreed in writing and failing agreement as follows:

   3.1.In the holidays following Terms 1 and 3 in 2020 and Term 2 in 2021, with the father for the first half and the mother for the second half;

   3.2.In the holidays following Term 2, 2020 and Terms 1 and 3, 2021, with the mother for the first half and the father for the second half; and

   3.3.Changeover shall occur at 5:00pm on the middle day of the holiday period and in the event there is an uneven number of nights, the child shall spend the additional night with the mother.

4. During the long summer holiday period and Christmas, X shall spend time with the mother and father as agreed and failing agreement as follows:

   4.1.In 2019 with the mother for the first half and with the father for the second half, with changeover to occur at 12:00pm on 8 January 2020;

   4.2.Commencing 2020, in all even numbered years with the mother for the first half and the father for the second half;

   4.3.Commencing 2021, in all odd numbered years with the father for the first half and the mother for the second half; and

   4.4.Save for Order 4.1 changeover shall occur at 5:00pm on the middle day of the holiday period and in the event there is an uneven number of nights, the child shall spend the additional night with the mother.

5. For the purpose of Orders 3 and 4 above, each school holiday period shall be taken to commence from the conclusion of school on the last day of the school term and conclude at the commencement of school on the first day of the new school term.

6. That X spend time with the parties on special days as follows:

   6.1.With the mother on the Mother’s Day weekend from after school on Friday (or 3:30pm if a non-school day) until the commencement of school Monday (or 9:00am if a non-school day);

   6.2.With the father on the Father’s Day weekend from after school on Friday (or 3:30pm if a non-school day) until the commencement of school Monday (or 9:00am if a non-school day); 

   6.3.With the parent with whom X would not otherwise be spending time with on her birthday pursuant to these Orders from after school or 3:30pm on X’s birthday until the commencement of school or 9:00am the following day;

   6.4.On each parent’s birthday if X is not already in the care of the parent whose birthday it is, the parent whom X is with will facilitate X initiating a telephone or Skype call to the other parent between 6:30pm and 7:00pm; and

   6.5.On Christmas Day with the parent whom she is to spend time with in accordance with Order 4; and

   6.6.When X is with one parent during Christmas Day, the other parent be at liberty to initiate a telephone or Skype call to X between 10:00am and 10:30am on Christmas Day, and the parent with whom X is spending time with shall facilitate that call.

7. For the purpose of changeover, unless otherwise agreed in writing, changeovers shall occur as follows:

   7.1.On school days, at X’s school; and

   7.2.At all other times, outside the J Family Care, OO Street, D Town.

8. Each parent be at liberty to communicate with X by telephone, or Skype as follows:

   8.1.Each Wednesday between 6:30pm and 7:00pm; and

   8.2.At any reasonable time at X’s request.

9. For the purpose of Order 8 above:

   9.1.The parent who does not have X in their care is to contact the other parent by text message by 6:00pm on Wednesday and elect which method of communication they seek to adopt; and

   9.2.The parent who has X in their care is to ensure that the child is available to participate in any such communication without distraction.

10. The parties are to ensure X’s attendance upon Ms NN or such other agreed psychologist in accordance with the recommendations of the psychologist.

11. If either parent is unwilling or unable to facilitate X’s attendance at any appointment with the psychologist at a time X is due to be in their care, they are to provide the other parent with no less than 14 days’ notice and X may be taken to the appointment by the parent who is available to facilitate X’s attendance. 

NOTATIONS

A. It is noted that Orders 1 to 4 of the interim Orders made by Justice Gill on 7 June 2019 remain in full force and effect.

IT IS FURTHER ORDERED THAT

1. The matter is otherwise transferred to the Registrar's list pending the relisting of the matter for the giving of trial directions or further application being made by the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tomlinson & Conlan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: AYC 59 of 2013

Ms Tomlinson

Applicant

And

Mr Conlan

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The parties have, to their credit and with the assistance of the Independent Children's Lawyer, come to an agreement as to the resolution of the Mother's Application in a Case which provides for time that X will spend with the Mother.  That agreement is set out at Exhibit C1 save for two matters which I return to shortly. 

2. The agreement comes in the context where Orders were previously made by me on a contested basis which changed X’s primary place of living from living with her Mother to living with her Father.  That was done in a context where I had concerns as to the stability that was able to be provided for X by her Mother for reasons which do not need to be repeated in this current judgment.

3. When the previous judgment was delivered it was noted that there was little information by which I was able to structure appropriate time for X under the change of home arrangements and that the Mother was at liberty to file a further application to refine the arrangements that were in place for X.  She has done so and as I said to their credit the parties have been able to agree to almost all of the matters to resolve that issue. 

4. The agreement between the parties means that there is regular provision for X to spend time with her parents on the school holidays and also spend special occasion time with them.  It also provides for X to spend increased time with her Mother during the school terms.

5. What does not remain in agreement is the cessation of weekend times between X and her Mother during school terms.  The contest between the parties relates to X’s return to the Father's care on the Monday following spending a weekend with her Mother.  That contest is as to whether or not X returns to his care at the commencement of school or at the expiration time from school that is, whether or not she moves into her Father's care at 9am on a Monday or at 3:30pm on a Monday.  It is helpful to have some of the background in place in relation to this dispute.

6. The background is that the Father lives with X in G Town in Victoria.  G Town, I am told, is about 45 minutes from D Town which is where the Mother currently lives.  The Father works about 45 minutes away from G Town.  The dispute then it is put by the Mother as to facilitate arrangements should X fall sick on a Monday for the Mother to retain her in her care without having to return her to G Town.

7. The Father has not filed material and the Mother’s material does not go to that particular aspect.  He asserts, as he has previously asserted in the proceedings with some evidential support on previous occasions, that he has significant support from his workplace.  His submission to the Court is that should X be sick on a Monday then he will be able to return to G Town if he has already left to care for her. 

8. The dispute then is pitched on a somewhat speculative basis that X may fall unwell while in the Mother's care.  Of course this is possible, but at present there is no reason for me to think that this is looming as a major factor in X’s care.  The determinative matter in the change of where X should live, being the change to move to be with her Father is that I was seeking to ensure some stability in what had been inappropriately living arrangements for X while under the primary care of her Mother.  That stability still speaks to the appropriateness of current arrangements and causes me to fall on the side urged by the Independent Children's Lawyer and the Father that X should return to his care at the commencement of the school day on the Monday.  The previous evidence that was before me was persuasive that the Father was in a better position to facilitate stability for X and to facilitate appropriate living arrangements.  Those seem, although marginally so, to be better supported by a change for X to return to live with her Father on the Monday morning. 

9. Accordingly, I make orders in accordance with Exhibit C1 save that 2.1 will instead read:

   … until the commencement of school or 9am on Monday

   and 2.2 will read:

   … until the commencement of school or 9am on Monday. 

10. The matter is otherwise transferred to the Registrar's list pending the relisting of the matter for the giving of trial directions or further application being made by the parties.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 26 November 2019

Associate: 

Date:  27 November 2019