Webber and Kanern

[2010] FamCA 1063

FAMILY COURT OF AUSTRALIA

WEBBER & KANERN	[2010] FamCA 1063
FAMILY LAW – CHILDREN – Interim parenting orders – Where the father must provide suitable accommodation for the child – Orders for special days and school holidays
APPLICANT:		Mr Webber

RESPONDENT: Ms Kanern

INDEPENDENT CHILDREN’S LAWYER: Ms Fotheringham, Solicitor

FILE NUMBER: BRC 9580 of 2009

DATE DELIVERED: 3 November 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 3 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Moore of Counsel appearing for the Applicant Father

SOLICITORS FOR THE APPLICANT: Towns Wilson Lawyers

COUNSEL FOR THE RESPONDENT: Ms Martinovic of Counsel appearing for the Respondent Mother

SOLICITORS FOR THE RESPONDENT: Gilfoyle Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fotheringham, Solicitor of Legal Aid Queensland appearing as the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. The proceedings be adjourned for case management review to 10.00 am on
   21 February 2011 at the Brisbane Registry of the Family Court.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

1. The child, J born … June 2008, live with the Mother.

2. The child spend time with the Father as agreed between the parties but failing agreement as follows:

   a.until such time the Father attains suitable accommodation, of at least a two bedroom premise where the Father resides alone when the chid is visiting him, as follows:

   i.

   each Tuesday, Thursday and Saturday from 3.00 pm until

   
   

   6.00 pm;

   b.once the Father attains suitable accommodation, of at least a two bedroom premise where the Father resides alone when the child is visiting him, as follows:

   i.           in week one, Tuesday and Thursday from 3.00 pm until

   
                

   6.00 pm;

   ii.in the alternating week in week two from 9.00 am Saturday until 5.00 pm Sunday and on Wednesday from 3.00 pm until 6.00 pm.

3. a.           The Father spend time with the child, once he has attained suitable accommodation, of at least a two bedroom premise where the Father resides alone when the child is visiting him, in the year commencing 2011 for school holiday periods commencing Easter 2011 of one block period not exceeding four (4) days or for such other times as the parties may agree in writing;

   b.in the event the Father wishes to take the child interstate the Father is to provide to the Mother, in writing not less than fourteen (14) days prior to travel, an accurate itinerary to include departure and return dates and a landline telephone number and address at which the Father and the child can be contacted at all times.

4. For changeover purposes, the Father is to collect and return the child to B Shopping Centre, or such other address as the parties may agree in writing.

5. The Father is to notify the Mother’s legal representatives and the Independent Children’s Lawyer of the address where he says he has obtained suitable accommodation within twenty-four (24) hours of obtaining such accommodation.

6. The Father shall attend an Anger Management Course and shall do all such acts necessary to make enquiries with a registered program no more than seven (7) days of the date of these Orders.

7. The Mother shall attend a Triple P Parenting Program and shall do all such acts necessary to make enquiries with a registered program no more than seven (7) days of the date of these Orders.

8. All communications in relation to the changing of these Orders be communicated by way of text message.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. Provided the Father has had the child for at least three (3) overnight periods pursuant to the terms of paragraph 3(b)(ii) hereof, the Father is to spend further time with the child from 8.00 am on Monday 27 December 2010 until 4.00 pm on Thursday 30 December 2010, with the Father to collect and return the child to B Shopping Centre, or such other address as the parties may agree in writing.

2. For the purposes of Order (10) hereof, the Father is to provide the Mother in writing not less than seven (7) days prior to travel, details of any flights booked for the child, the address at which the child will be staying and the landline telephone number for such address.

3. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9580 of 2009

MR WEBBER

Applicant

and

MS KANERN

Respondent

REASONS FOR JUDGMENT

1. I’m going to read the orders and give a ruling on this.  I’m going to redraft the orders.

   Paragraph 2(a) is, until such time as the father attains suitable accommodation, as follows:  each Tuesday, Thursday and Saturday from 3.00 pm until 6.00 pm.

   2(b):  Once the father attains suitable accommodation, as follows:  in week one, Tuesday and Thursday from 3.00 pm until 6.00 pm.  In the alternating week, in week two, from 9.00 am Saturday until 5.00 pm Sunday and on Wednesday from 3.00 pm until 6.00 pm.

   3(a): The father spend time with the child once he has obtained suitable accommodation – I’ll come back to.

   3(b) will be as it stands. 

   4, 5 and 6 will be as it is drafted.  There’ll be an additional paragraph that for all contact periods the father is collect the child from and return the child to [B Shopping Centre] unless the parties otherwise agree in writing.

2. I’ll make an order that suitable accommodation shall be accommodation of at least a two-bedroom premises where the father resides alone when the child is visiting him.

3. The father is to notify the mother’s solicitors and the Independent Children’s Lawyer of the address where he says he has obtained suitable accommodation within 24 hours of obtaining such accommodation.

4. I turn to consider the issue of whether the holiday time of four days should commence at Christmas or at Easter.  The father’s time up until now has been quite limited as a result of difficulties in the relationship.

5. The mother’s position is the child is only two and a half.  He has never spent time away from her and a period of four days is simply too long, too soon. 

6. She says she continues to breastfeed the child and by virtue of any such order, the child would be virtually weaned for the period that he is away.  The mother says that the child would not be familiar with the grandparents. 

7. The father is proposing to take the child at the pick of the days, well, Christmas Eve, from the 24 December presumably until the 27 or 28 December.  I would have thought he could have been a bit more reasonable in the spirit of Christmas.

8. If the key factor here is for the father to spend some time with the child.  So first of all he has got to get suitable accommodation, then, the weekend times commence.  As has been submitted, the best he could hope for even if he obtains the accommodation before this weekend, it’s about three alternate weekends between now and Christmas time. 

9. The view that I take is, the father’s position is unreasonable where he wants to have the pick of the four days.  It is a very difficult time to travel.  The view that I take is, the mother has been accommodating, given the history of this matter, in agreeing to the proposals to date.  Nobody wants to stop the father ultimately spending holiday time, increasingly more holiday time as the child matures, but at this stage the father’s proposal is too much, too soon.

10. I would have acceded to a lesser period.  I would have acceded to a period outside the actual Christmas days provided the father gets in the three weekend periods, but there’s no evidence that those proposals are on the agenda.

11. So at this stage, I’ll make the orders – paragraphs 3(a) and (b) will be:

    3(a) that the father spend time with the child once he has obtained suitable accommodation in the year commencing 2011, for school holiday periods commencing Easter 2011 of one block period not exceeding four days or for such other times as the parties may agree in writing.

12. I will accede to the father’s proposal on this condition, that provided the father has had the child for at least three overnight periods pursuant to the terms of paragraph 2(b)(ii) hereof.

    The father is to have further time from 8.00 am on Monday, 27 December 2010 until 4.00 pm Thursday, 30 December 2010.  [This is a separate order from paragraph 3 – 3(a) and (b).]

    And the father is to provide the mother in writing not less than seven days prior to travel, details of any flights booked for the child, the address at which the child will be staying and a landline telephone number for such address.

13. So I’ll mark them by consent it is ordered until further order, etcetera.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 3 November 2010.

Associate: 

Date:  3 November 2010