Walkley and Dean

[2009] FamCA 468

FAMILY COURT OF AUSTRALIA

WALKLEY & DEAN [2009] FamCA 468

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT: Mr Walkley

RESPONDENT: Ms Dean

INDEPENDENT CHILDREN’S LAWYER: Ms Staka

FILE NUMBER: PAF 2206 of 2004

DATE DELIVERED: 13 February 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Stevenson J

HEARING DATE: 5 December 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Watson Stafford

SOLICITOR FOR THE RESPONDENT: Stewart Cuddy & Mockler

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Champion Legal

Orders

1. That all existing orders in relation to the child … born … January 2000 (‘the child’) be discharged.

2. That the child live with the father.

3. That the child spend time with the mother as follows:

   3.1During school term time each alternate Saturday and Sunday from 9:30am until 5:00pm on each of those days, commencing on the weekend of 14 and 15 February 2009.

   3.2For five days during Terms 1, 2 & 3 school holidays, from 9:30am until 5:00pm on each of those days, on dates to be arranged by the parties or on the first five days of each holiday period in default of agreement.

   3.3For ten days during the Christmas school holidays, from 9:30am until 5:00pm on each of those days, on dates to be arranged by the parties or to be the first five days and the last five days of the holiday period in default of agreement.

   3.4From 9:00am until 1:00pm on Christmas Day and the child’s birthday.

   3.5From 9:30am until 5:00pm on Mothers Day and on the mother’s birthday, if not a school day.

4. That the child’s time with the mother be suspended on Fathers Day and the father’s birthday.

5. That the mother be at liberty to attend the child’s school on such occasions as the principal and the child’s teacher may authorise from time to time.

6. That the mother be restrained from removing the child from his school at any time and for any purpose.

7. For the purposes of implementation of these orders the parties shall meet at W Railway Station at the commencement of the mother’s time with the child and the father shall collect him from the mother at F at the conclusion of all such periods.

8. 8.1    That the mother be at liberty to telephone the child each Monday, Wednesday and Friday no earlier than 5:30pm and no later than 6:30pm.

   8.2That the father ensure that the child is able to telephone the mother at all reasonable times which he may request.

9. That the mother is restrained from taking the child to see any counsellor without the written consent of the father.

10. That the parties shall each be entitled to receive copies of all school reports, notices, newsletters and bulletins from the child’s school and they may each attend parent/teacher interviews, carnivals, concerts and other events at the school to which parents are invited from time to time.

11. That the father shall advise the mother and keep her informed of the school that the child attends from time to time and he shall ensure the mother’s details are included on all enrolment forms.

12. That each party shall advise the other at the earliest opportunity of any serious illness or hospitalisation of the child while in the care of that party.

13. That each party is restrained from:

    13.1Discussing these proceedings, or issues raised in these proceedings with the child or with any person in the presence or hearing of the child

    13.2Denigrating the other parent or any member of their extended family to the child or to any person in the presence or hearing of the child.

14. That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

15. That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 2206 of 2004

MR WALKLEY

Applicant

And

MS DEAN

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. On 21 September 2006 I ordered that the parties’ son, born in January 2000 live with his father, Mr Walkley, and spend limited time with his mother, Ms Dean, each Sunday from 10:00am until 2:00pm.  The orders provided for supervision of this time until 25 June 2007.  These orders were interim in nature and were monitored by a Family Consultant pursuant to section 65L.

2. On 18 September 2007 a Family Consultant, Ms B, prepared a report which recommended an increase in the child’s time with his mother to unsupervised periods between 9:00am and 5:00pm each Sunday.  On 9 November 2007 orders were made that the child spend time with his mother from 9:30am until 5:00pm each Sunday, without supervision.  These orders were also interim in nature.

3. On 17 June 2008 a Family Consultant, Mr G, prepared a second Family Report to assist with the finalisation of these proceedings.  I heard the competing applications for final orders on 5 December 2008.  These reasons should be read in conjunction with my earlier judgment.

The Proposals of the Parties

1. The father proposed that the present arrangements continue, with the addition of day periods during school holidays.  He strongly opposed the introduction of any overnight time.

2. The mother proposed that the child spend time with her from 5:00pm on Friday until 5:00pm on Sunday each alternate weekend and for half of all school holidays.  In final submissions, the mother’s legal representative suggested that there could be a graduated introduction of overnight time. 

3. The Independent Child’s Lawyer proposed that the child spend time with his mother each alternate Saturday and Sunday and on single days during school holidays.  There was no support for the introduction of overnight stays from the Independent Child’s Lawyer.

The Second Family Report

1. As recently as the time of the interviews for the second Family Report in May 2008, the mother pressed her application that the child return to live with her and spend each alternate weekend with his father.  She indicated to the Family Consultant that she was prepared to compromise her position, by way of an additional Tuesday and Wednesday nights in alternate weeks.  At another point during the interview she indicated that she would consider a week-about arrangement.  The mother insisted that the child be enrolled at F Public School.

2. The child told Mr G that he likes attending H School, which is at M.  He said that he likes his teacher and has friends at school.  He said that he could not remember any children with whom he attended D Public School before the change in residence.

3. Mr G assessed that the mother’s insistence that the child attend F Public School indicated that “she prioritises her need to remain at her present address over the needs of her son, to whose needs she appears, at times, insensitive”. 

4. The child told Mr G that his mother had said to him that his father will go to gaol; that D Public School is better than H Public School and that “bad people” inhabit the area around his school.  He also revealed to Mr G that “the present litigation saddens” him, to adopt the words of the Family Consultant.  He indicated to Mr G that he has told his father, but not his mother, of these feelings.  It should be noted that the mother denied that she said these things to the child.

5. Mr G summarised his impressions and assessments in these terms:

   “The interviews with [the child] reveal that he loves [H] Public School and that his mother’s degradation of the school distresses him.  Moreover, I suspect that his removal from that school will impinge upon him more adversely than [the mother] understands.  Her son loves her and wants to spend time with her.  However, he wants such time to lack degradation upon the world that he values.  Two components of that world are his present school and his father, the only person to whom [the child] entrusted the sadness that accompanies him.”

6. These opinions of the Family Consultant are obviously matters of concern in determining what time the child should spend with his mother.  It is also a matter of concern that Mr G formed the view that “[the mother] continues to believe that [J], [the child’s] cousin, has sexually abused [the child]”.

Consideration

1. I found persuasive the submission on behalf of the Independent Child’s Lawyer that “nights are a different environment to days for a child”.  I appreciate that the child has now had the benefit of almost two and a half years of stability with his father and only limited exposure to the damaging aspects of his relationship with his mother.  It is also important to remember that he is now 9 years old, as opposed to only 6 years and 9 months at the time of the original orders.

2. Overall I consider that the proposal of the Independent Child’s Lawyer will best serve the child’s interests at this stage of his life.  I am not prepared to put at risk the stability which the father has achieved for him, in the last two and a half years, by introducing overnight stays or block holiday periods.  It seems to me that the proposal of the Independent Child’s Lawyer achieves a balance between the need to protect the child’s emotional wellbeing and the fostering of his relationship with his mother. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              13 February 2009