Watson and Watson (No 3)

[2009] FamCA 1384

FAMILY COURT OF AUSTRALIA

WATSON & WATSON (NO. 3) [2009] FamCA 1384

FAMILY LAW – CHILDREN – Interim – With whom children spend time

APPLICANT: Ms Watson

RESPONDENT: Mr Watson

FILE NUMBER: MLC 5375 of 2009

DATE DELIVERED: 16 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 16 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Vohra

SOLICITOR FOR THE APPLICANT: Maeve O’Brien & Associates

COUNSEL FOR THE RESPONDENT: Mr Brown

SOLICITOR FOR THE RESPONDENT: Webb Korfiatis

Orders

BY CONSENT IT IS ORDERED

1. That all previous Orders with respect to the children M born … January 2003 ("M") and R born … September 2004 ("R") be discharged.

UNTIL FURTHER ORDER

1. That the children M and R live with the Wife.

BY THE COURT

1. That the children M and R spend time and communicate with the Husband as follows:

   (a)from 9:00am until 6:00pm on Saturday 19 December 2009;

   (b)From 6:00pm on Monday 21 December 2009 until 9:00am on Tuesday 22 December 2009;

   (c)From 9:00am on Friday 8 January 2010 until 10:00am on Saturday 9 January 2010;

   (d)From 9:00am on Monday 18 January 2010 until 5:00pm on Monday 25 January 2010;

BY CONSENT

(e)From the commencement of Term 1, 2010 as follows:

(i)     each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday commencing the first weekend of Term 1, 2010;

(ii)    each alternate Wednesday from the conclusion of school until the commencement of school on Thursday commencing the second Wednesday of Term 1, 2010;

BY THE COURT

(iii)     for one half of the Easter school term holidays in 2010 from 10:00am on the first Saturday until 10:00am on Sunday 4 April 2010;

(iv)   for one half of the June/July school term holidays for one week between 10:00am on 26 June 2010 until 10:00am on 3 July 2010 AND then from 10:00am on 10 July 2010 until 10:00am on 15 July 2010

BY CONSENT

(v)    on each of M’s and R’s birthdays and on the Husband's birthday, from 3:30pm until 7:30pm;

(vi)   from 9:00am until 6:00pm on Father's Day;

(vii)    by telephone each Tuesday and Thursday from 6:00pm AND the Husband to call on the Wife's telephone AND the Wife to facilitate the children taking the call;

(viii)  as may be further or otherwise agreed.

1. That the child L spend school term holiday time and long summer vacation time with the parent with whom R and M reside with at that time.

2. That in the event the child L is on an Exeat Weekend from his Boarding School then he and the children M and R spend time with the parent with whom R and M are scheduled to spend time with AND that parent to deliver the children M and R at school on Monday morning AND the Husband to deliver the child L to his boarding school on Monday evening. 

3. That changeover occur at the children's schools if open AND if not open then at the gate of the Wife's residence.

4. That the Husband's time with the children be suspended as follows:

   (a)From 9.00am until 6.00pm on Mother's Day;

   (b)From 3.30pm until 7.30pm on each of the children's birthdays AND the Wife's birthday

   if the children would otherwise be spending time with the Husband.

1. That the Husband abide by the following conditions:

(a)     He continue to attend upon Dr H, psychiatrist, or his nominee as directed by him and to abide by all reasonable recommendations as to treatment; AND

(b)    He not consume any alcohol 24 hours prior to or during his time with any of the children.

1. That the Wife be authorised to obtain school reports and notices for the child L, AND attend parent-teacher interviews, sporting events, school concerts and the like events that parents attend;

1. That neither party insult, belittle or denigrate the other or their partners in the presence or hearing of the children or any of them.

1. That the parties attend upon Mr P, psychologist for reportable counselling every four (4) weeks or as may otherwise be arranged with Mr P to commence forthwith AND at the Husband's expense.

1. That the Wife be at liberty to telephone and speak with all the children on at least one occasion when they are overnight with the Husband.

1. That the children are to return to the Wife's care in the event that the Husband is not available to care for them overnight.

1. That all Interim Applications be otherwise dismissed

1. That the applications for Final Orders be adjourned for a Directions Hearing before Registrar Field on 16 February 2010 at 12:00 noon.

1. 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 the 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.

NOTATION

A.The Wife and the children including L are travelling to Queensland between 23 December 2009 and 7 January 2010 inclusive.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5375 of 2009

MS WATSON

Applicant

And

MR WATSON

Respondent

REASONS FOR JUDGMENT

1. The parties today have agreed on interim orders and, in due course, property matters will be considered by a registrar so that the case can be prepared for hearing.  In the meantime, so far as the children are concerned, the parties are going to retain a therapeutic relationship with Mr P, though on a reportable basis, in the hope that the children’s issues will be resolved, and, if they’re not, the matter will also be close to then being ready for me to hear it. 

2. Today there are in fact only, objectively speaking, very, very small issues left.  Mr P in his report has recommended that as of the start of the school year, next year, that the children spend each alternate weekend with their father, I think from Friday to Monday, and the issue is as to how to get that sequence started at this stage.  One of the questions that was asked of Mr P by the mother’s solicitor related to that aspect.  Mr P has shown a certain ambivalence as to how it needs to be gotten started, but says that he is not adverse to a graduated introduction of contact.

3. It dovetails with the other outstanding issue, which is as to how to configure the upcoming summer holidays.  Mr P again has responded to the query by the mother’s solicitor and has said that the children would be able to cope with two continuous weeks, but it might be more sensible in the circumstances for in fact two periods of one week at a time.  I was impressed by the detail of the reports and, I must say, when I came in to court I thought it would probably be a simple enough matter to just put in to place what Mr P had spelt out.  What I didn’t know, and am now aware of, is that in fact the mother’s going away between 23 December and 7 January with the children, and that’s been agreed to by the children’s father.  But it does rather truncate the options available to me.

4. I don’t think there’s anything unreasonable at all in having the children have just a brief period of graduated build-up to the longer periods of time overnight with their father, given how, through no fault of their own because it’s a matter of responsibility of the adults and not the children, they’ve had such a limited time with their father until now.  I’m conscious that the father will be keen to get things started as soon as possible, as thoroughly as possible, and as much as possible, but that’s not actually the test for me.  The test for me, of course, is to do whatever I can to ensure that the children’s best interests are protected and promoted.  And as an aside, I would say that my aim is also to make sure that these orders are successful, and I think that the chance of success is much higher if I am sensitive to getting them started on a graduated basis.

5. I feel somewhat constrained, given that this trip is going to occur, because it robs me of some of the options.  I do not say that critically.  It is absolutely proper of the father to have agreed to the mother having that two-week holiday in Queensland with the children.  I am not critical of her for taking it.  But I am working within the constraints with which I am thus presented.  Doing that, I am satisfied that the regime suggested by the mother, both before she goes away and afterwards, is not unreasonable. I do not find it will be in the children’s best interests to suddenly have a week-long period with their father upon their return, after not having that time with him on any basis, let alone unsupervised, for such a long time. 

6. In terms of the days, though, prior to the trip, I am not sure I fully understand the mother’s proposal.  Initially, she proposes this Saturday from 9 am to 6 pm on an unsupervised basis, and I think that is a perfectly appropriate start to replace what has been supervised time.  That is a sensible first step.  But then she seems to propose either an overnight or a couple of hours one evening.   

DISCUSSION

RECORDED : NOT TRANSCRIBED

I certify that the preceding six (6) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  16 December 2009