Van Wieren and Van Wieren (No 2)

[2019] FamCA 1031

FAMILY COURT OF AUSTRALIA

VAN WIEREN & VAN WIEREN (NO. 2) [2019] FamCA 1031

FAMILY LAW – CHILDREN – where the Court previously made Orders to progress the time the children spend with the father pending final hearing – where the father seeks the older child to move to overnight time and the mother opposes it – where the Court finds there is no evidence the older child could not cope with the introduction of overnight time.

Family Law Act 1975 (Cth)
APPLICANT:	Mr Van Wieren

RESPONDENT: Ms Van Wieren

FILE NUMBER: BRC 1558 of 2017

DATE DELIVERED: 10 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 10 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms K Buckley

SOLICITOR FOR THE APPLICANT: Sheehan & Co

THE RESPONDENT: Self-represented

INDEPENDENT CHILDREN’S LAWYER: Ms T-L Geysen, TLG Law

Orders

1. That after the children, X and Y, complete their observations and interviews with the Family Report Writer, Ms H, in Town R on Monday, 14 October 2019, the children shall remain in the care of the father to allow him to return the children to Town D, and the children shall be returned to the mother upon her return to Town D.

2. That commencing next Thursday, 17 October 2019, Y shall spend time with his father from 9.00 am Thursday to 10.00 am Friday for four visits, and thereafter from 9.00 am Thursday to 4.00 pm Friday, until further order.

3. That in respect of the interim orders made 17 July 2018:

   (a)       Order 1(a)(ii) continue in full force;

   (b)       Order 1(a)(v) continue in full force;

   (c)       Order 1(b)(i) be discharged;

   (d)       Order 1(b)(ii) be varied to provide that time cease at 4.00 pm;

   (e)       Order 1(b)(iii) be discharged.

4. Noting that the parents disagree about the school that X may attend for the 2020 school year, including whether it be a school in Town D or a school in Brisbane, the Court gives each parent the liberty to enrol the child so as to protect a position for the child in the school of their choice, in no more than two schools of their choice, in Town D or Brisbane.  In so doing, neither parent should regard enrolment as doing more than protecting a position of the child, the Court will determine the child’s school as part of the orders to be made arising from the further hearing on 5 and 6 December 2019.

5. That the parties shall, by 28 November 2019, file and serve one affidavit dealing only with:

   (a)any evidence about how the orders made today have operated from their perspective; and

   (b)any further comments arising from the family report.

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 Van Wieren & Van Wieren 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 BRISBANE

FILE NUMBER: BRC 1558 of 2017

Mr Van Wieren

Applicant

And

Ms Van Wieren

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case has had an elongated history of determination, sadly.  But some of it, as set out in Reasons for Judgment delivered when I made the decision that the children not be permitted to relocate on a permanent basis to the Country B, arise from the time when:

   a)the parties separated;

   b)the fact that the parties did not communicate well;

   c)the fact that both parties are quite strong yet quite different individuals with different cultural backgrounds; and

   d)that these two little boys are, really, stuck in the middle of this dispute.

2. The orders the Court has made to date are that the children live with the mother in Australia and that the children effectively not be entitled, at this stage, to relocate.

3. As a result of the lack of evidence from the time of trial of this matter to the time of Judgment, and the uncertainty of how even the Orders that had been made at the time had progressed, through a process of further Directions Hearings it has been decided and I have set 5 and 6 December 2019 for further evidence to be taken as to what arrangements are in the best interests of the children, moving forward, now that the children are living in Australia with their mother.

4. As a result the mother has, as she had previously raised, indicated a desire to move to Brisbane from Town D.  The father opposes that.  There are disputes as to where the children should go to school, although that will very much be shaped by where they live.  There are also disputes as to how to progress the time arrangements which have been in place for these two young children and have been in place now for well over 12 months.

5. In terms of orders, there has been a delay in the movement to overnight time as previously ordered by the Court, for X.  X begins school next year and Y will soon turn three.  They live primarily with the mother.  She is a cautious mother.  She has indicated a reluctance to agree to overnight time for Y, or extending overnight time for X.  Her reasons are set out in her Affidavit and are very much associated with her feeling about them not being ready.

6. I do not ignore that a mother, or a father for that matter, are entitled to have feelings shaped by their parenting style and their view of what they believe is in the best interests of their children.  The father also has feelings.  He feels that Y is ready to move to overnight time and feels that X should and would enjoy having a period of two nights with him, rather than one night, as has been the case since June this year.  There is no doubt that the children have been having extensive day time with the father now for well over 12 months.

7. Ms H has been engaged by the Independent Children’s Lawyer, Ms Geysen, to prepare an updated family report.  The updated family report is likely to provide recommendations to the Court about the issues which will be before the Court for determination on 5 and 6 December.  Those interviews are to take place in Town R on 14 October 2019.

8. Part of the father’s application today was that the children spend time with him from 7.15am to 12 noon on Monday, 14 October 2019 to allow him to take the children to the interviews.  However, the only reason they need to be up that early is because it seems that the father’s interviews take place before the children are required for observations between the father and then the mother.

9. I do not propose to change the order in which Ms H has apparently decided she needs to speak to the parties; that is a matter totally for her.  I see no benefit for the children getting up at 7.15am in the morning to travel to Town R, to be cared for by somebody, presumably the mother, while the father is interviewed; then to have their sessions of observation and/or discussions with Ms H with the father, then the mother, and then to remain with the mother, in the care of the father, while the mother is interviewed.  A more sensible arrangement is, and I propose to order that, the mother, in fact, take the children to the interviews but that the father return with them.

10. So, the order in respect of the interview day on 14 October 2019 will be that after the children, X and Y, complete their observations and interviews with the family report writer, Ms H, in Town R on Monday, 14 October 2019, the children shall remain in the care of the father to allow him to return the children to Town D and the children shall be returned to the mother upon her return to Town D.

11. In respect of the competing proposals which have been identified from the submissions today – actually I will deal with the issue of Y first because that was the issue which I identified as the one most troubling me.

12. There is nothing in what I have heard or the evidence I have read that would suggest to me that Y would not cope with spending overnight time with his father.  He now has an established relationship with his father.  The father has made appropriate arrangements for bedding.  The mother is concerned that the child might be stressed or anxious if he wakes up in the middle of the night and she is not there and/or just dealing with being away from her.  I understand her feelings and concerns, I just do not agree with them.  In my view, the time has arrived for Y to begin spending overnight time, however what I propose to do is to graduate it.

13. Commencing next Thursday, which is 17 October 2019, he will spend time with his father, Y, from 9.00am Thursday to 10.00am Friday for four visits, and thereafter from 9.00am Thursday to 4.00pm Friday until further order.

14. In respect of X, the orders currently provide for X to spend time with the father from 9.00am to 4.00pm on a Tuesday, and from 9.00am until 2.00pm on a Friday.  Although I can see the benefit in preparing X for what could be, although the father opposes it, him moving in Brisbane and spending extended time, I do not propose to increase it to two nights at this stage for X.

15. What I do propose to do is to make the Thursdays from 9.00am Thursday until 4.00pm on Friday which means that by the time the matter comes back to me, both children are effectively having the same time.

16. It seems to me that Y’s time on Tuesday should also be extended to 9.00am to 4.00pm.

17. So I want the boys, basically, to have the same time.

18. I have organised what happens for their report interviews.  The order I make in respect of schooling is that noting that the parents disagree about the school that X may attend for the 2020 school year, including whether it be a school in Town D or a school in Brisbane, the Court gives each parent the liberty to enrol the child so as to protect a position for the child in a school of their choice, in no more than two schools of their choice, in Town D or Brisbane.

19. In so doing, neither parent should regard enrolment as doing more than protecting a position for the child, the Court will determine the child’s school as part of the orders to be made arising from the further hearing on 5 and 6 December 2019.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 10 October 2019.

Associate:

Date:  21 January 2020