Vincennes and Caller

[2012] FamCA 419

FAMILY COURT OF AUSTRALIA

VINCENNES & CALLER [2012] FamCA 419

FAMILY LAW – CHILDREN - Parenting issues – Matter in defended list awaiting hearing – Identification of issues – No challenge to sole parenting order – Travel – Weekends and time spent orders in dispute – Ordering of s11F report – Further hearing required

Family Law Act 1975 (Cth)

APPLICANT: Ms Vincennes

RESPONDENT:	Mr Caller
FILE NUMBER:	MLC	6924	of		2008

DATE DELIVERED: 29 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 29 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Roberts Beckwith Partners

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT pursuant to s 11F of the Family Law Act 1975 the Family Consultant Ms H is to prepare an updated issues and assessment report on the matters identified in Court this day and as are further developed in the extempore reasons for judgment, such report to be prepared following upon an interview with the parties, the child A and any other adult or child requested to attend by the Family Consultant.

2. THAT all extant applications be listed for case management and directions before Young J on Thursday 13 September 2012 at 10.00 a.m.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties and the Family Consultant.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6924 of 2008

Ms Vincennes

Applicant

And

Mr Caller

Respondent

REASONS FOR JUDGMENT

1. The matter of Vincennes & Caller has been listed before me on the basis that time has passed since the previous interim orders were made, and the matter is presently listed as a case awaiting a defended hearing.  Mr Williams of counsel appears for the mother and the husband appears in person.  This matter does have a long history before the Court and there have been various orders made on parenting and specific issues for the three children of this marriage. 

2. Two of those children are now 17 and 13 and a half years of age and the present orders do not impact upon them.  Unfortunately, but for reasons outside the scope of my inquiry, they no longer see their father.  The youngest child is A (“the child”), born in May 2002, and thus she has just turned 10 years of age.  The current orders concern her and her time spent with her father and other specific issues.

3. I have asked both Mr Williams and the father to outline the ongoing issues and, in summary form, they are as follows:

   (a)for the mother to maintain a sole parenting order, and that is not now the subject of challenge; 

   (b)the mother has an amended application before the Court filed 22 August 2011 and highlights her request to limit the holiday time that the child spends with her father.  Rather than two in three weekends, her request is one in two weekends.  Likewise, school holidays are sought to be adjusted so that less time is spent with the father and the child has more time in her home and with the mother and her two elder sisters; 

   (c)weekends are also in issue, specifically whether they conclude on a Sunday evening or a Monday morning, given that the mother has relocated to the Mornington Peninsula and the father remains living in the eastern suburbs of Melbourne.  Thus there is distance and time involved in that travel; and

   (d)finally, the mother identifies what she sees to be the more appropriate sharing of travel arrangements so that the father does more driving and that she, and more particularly her new partner, have less travel time and involvement.

4. All of those orders sought by the mother are opposed by the father, save for the sole parenting order.

RECORDED  :  NOT TRANSCRIBED

1. The father has identified certain issues.  It is a priority to him that he maintains his current weekends and, in particular, all of the Sunday.  He does not agree to his time being concluded on a Sunday evening, but insists upon the Monday morning.  Likewise, and primarily because it was the indulgence that he offered up to the mother for her to move to the Mornington Peninsula, that the current driving and travel arrangements should remain in place.  He also wishes to maintain the extra time in holidays, which has an historical explanation and which he says is very much in the best interests of the child.

2. I did float with the parties whether there was any level that they could discuss these issues between themselves, either through lawyers or personally or through other members of family, but the response was a unified rejection of discussion.  As unfortunate as it is, sometimes that is the case in families. 

3. Previously a family consultant, Ms H has prepared an Issues and Assessment paper pursuant to section 11F of the Family Law Act. The document before me is dated 30 March 2011. Helpfully, Ms H was in Court today and has heard the matters raised by the parties and has been able to identify the particular issues. She will also have the assistance of this ex tempore judgment to identify and concentrate upon issues when she meets the parties and, more particularly, the child.

4. Both parties have requested an updated preliminary report, pursuant to section 11F and not section 62G of the Act, and I will make that order. Many of the issues are already identified in the helpful document before the Court, but the family consultant is now asked to concentrate primarily upon the child, the time that she spends with both her parents, and the particular issues surrounding holidays, weekends and travel. The Court will be assisted by having the child’s considered views on these matters.

5. It is very much to her credit, and no doubt in some difficult circumstances, that she has maintained a relationship with her father which involves her in much travelling but it is ongoing and hopefully in her best interests.  The report will assist in further clarifying those issues.

6. I said in the discussions before me, and the parties have heard, that the issues in this case are largely factual and will be determined by me either on the papers filed or on brief cross-examination.  These are limited issues with a lengthy background that may be relevant to the further determination of the matters.  I take this opportunity to emphasise that the matter came before the Court not by any urgent application of the parties but by the Court listing the matter in its normal hearing of matters that are in a defended list of cases awaiting trial. 

7. It was a matter that was recently assigned to me and thus it was listed for case management and to ascertain the particular issues between the parties. Those issues are now clearly identified in these brief ex tempore reasons and they are the matters upon which the matter will be listed for a further management hearing before me, and then a defended hearing as soon as practicable and subject to the completion and release of the updated section 11F report.

8. I will have these brief reasons transcribed, placed upon the Court file and made available to both parties and to the family consultant. 

I certify that the preceding twelve
(12) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 29 May 2012.

Associate: ……………………………………………………………

Date:  …………………………………………………………………