Whale and Dwyer

FAMILY COURT OF AUSTRALIA

WHALE & DWYER

[2007] FamCA 1659

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Consent Orders – Transferred to the Federal Magistrates Court

Family Law Act 1975 (Cth)

APPLICANT:

Ms Whale

RESPONDENT:

Mr Dwyer

FILE NUMBER:

BRC

6222

2007

DATE DELIVERED:

17 August 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

16 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George of Counsel

SOLICITOR FOR THE APPLICANT:

Frank Carroll Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Forrest of Counsel

SOLICITOR FOR THE RESPONDENT:

MacDonnells Lawyers

Orders

IT IS ORDERED

The children M born … January 1998 and L born … June 2000 spend time with the father for six nights in each fortnight from after school on Tuesday until before school on Monday, this arrangement to commence on the first Tuesday after the father moves out of the former matrimonial home.

AND IT IS ORDERED BY CONSENT

In the terms of the minute of orders set out in Annexure A.
If the matter does not resolve at the conciliation conference scheduled for 11 September 2007 the proceedings be transferred to the Federal Magistrates Court.

AND IT IS FURTHER ORDERED

The original minute of orders signed by the parties be placed and remain on the Court file.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create, 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 these orders are set out in the Fact Sheet attached and those particulars are included in these orders.

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

ANNEXURE A

It is ordered by consent

That the father shall vacate the former matrimonial home situated at …, O on or before Thursday 6 September, 2007 and thereafter, until further order, the mother shall have the sole use and exclusive occupation of the said property.
That the mother and the father shall have equal shared parental responsibility for the children, M, born … January, 1998 and L, born … June 2000.
During Queensland gazetted school holidays the said children shall live for half of those school holidays with the father and for the other half with the mother, with the father for the first half of the remaining school holidays in 2007 save for the Christmas holidays and second half of the school holidays in 2008 and in every second year thereafter and the first half of the holidays in 2009 save for the Christmas holidays and every second year thereafter.
Save as otherwise provided for herein, the children shall live with the father for the second half of the Christmas holidays each year.
The children shall live with the father from 5:00 pm Christmas Eve until 9:00 am Boxing Day in 2007 and alternate years thereafter and from 9:00 am Boxing Day 2008 until 12 midday on 27 December, 2008 and alternate years thereafter.
Should the children be living with the mother pursuant to these Orders on the weekend when Father's Day falls, the children shall return to live with the father at 5.30pm the day prior to Father's Day and the father shall deliver the children to school on the Monday following Father's Day.
Should the children be living with the father pursuant to these Orders on the weekend when Mother's Day falls, the children shall return to live with the mother at 5.30pm the day prior to Mother's Day and the mother shall deliver the children to school on the Monday following Mother's Day.
With respect to the birthdays of M and L, the non-resident parent shall spend time with the children from 2.00pm to 7.00pm if the birthday falls on a weekend or school holidays and between 3.00pm to 6.00pm if the birthday falls on a school day.
Should the children be living with the mother pursuant to these Orders on the father's birthday, the children shall return to live with the father at 5.30pm the day prior to the father's birthday and the father shall return the children to school or the mother (if on school holidays) at 9.00am the next day.
Should the children be living with the father pursuant to these Orders on the mother's birthday, the children shall return to live with the mother at 5.30pm the day prior to the mother's birthday and return the children to school or the father (if on school holidays), at 9.00am the next day.
That each parent shall keep the other informed as to the children’s health, welfare and education and also keep the other parent informed of their current residential address and telephone number, notifying the other within 48 hours of any change thereto.
These orders shall be sufficient authorisation for any medical practitioner or allied health professional who may treat the children from time to time to speak, freely with both parents about the children and provide either parent with any information he or she may reasonably request about the children and any diagnosis and treatment the child or children may be receiving.
Each parent shall keep the other informed as to the name, address and telephone number of any medical practitioner or allied help professional who treats the children from time to time whilst in that parent’s care.
These orders shall be sufficient authority for any school, sporting organisation or other similar extra-curricular organisation which the children attend to speak freely with both parents and provide both of them with whatever verbal or written information he or she may reasonably request from them at his or her sole cost.
That neither party shall denigrate the other or other members of the other parent’s family to the children or in the presence of the children.
Notwithstanding as otherwise provided in these orders the mother shall have the child L in her care for the purposes of taking her to … competitions on the weekends of 22-23 September, 2007 and 19-21 October, 2007.
The parties shall be able to telephone and speak to the children on 2 occasions whilst the children are living in the care of the other parent pursuant to these orders, such calls to conclude by 8:00 pm.
Whilst the children are living in the care of each parent pursuant to these orders should either of the children express a whish to telephone the other parent then the parent with whom they are living shall facilitate such reasonable telephone contact between the children and the other parent.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6222 of 2007

MS WHALE

Applicant

And

MR DWYER

Respondent

REASONS FOR JUDGMENT

The short point in this matter is whether on the interim basis the children M 9½ years and L 7 years should spend time with the parents on the basis of eight nights mother/six nights father, as sought by the father, or nine nights mother/five nights father, as sought by the mother.
The parties have been separated but living under one roof in the former matrimonial home for about a year. Pursuant to consent orders which I will make today the father will leave the former matrimonial home on about 6 September 2007, that is in about three weeks.
Pursuant to consent orders also the parties are to have equal shared parental responsibility for the children. To their credit, they have agreed a comprehensive set of interim orders concerning the children but were unable to resolve the one matter outstanding.
It is common ground that there not be an equal time interim arrangement.
Each of the party's proposals amounts to substantial and significant time, which is a result I am required to consider positively.
It is common ground that the father will move a short distance only from the former matrimonial home so that both of the proposals equally are reasonably practicable.
It remains then to consider which proposal would be in the children's best interests.
The children each have a meaningful relationship with the parties and, plainly, would benefit by the continuation of that circumstance.
There is no evidence as to the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I note the children's expressed wishes to Ms S, social worker.
According to Ms S, the children are strongly bonded with each of the parties and are closely bonded with each other.
Ms S observed (family report, par 8.4), that since the separation the mother has tended to dominate the children's care, and there are indications in the mother of a tendency to control and preclude the father to some degree. On the evidence, it appears that before the separation, that is historically, the father was able to be more actively involved in the children's care. Thus, even though certainly at this stage, it is not part of my function to make findings of fact, there is, at least, an indication that the mother's willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father may be compromised, not by unwillingness but by emotional forces because of the separation. Having said that, the mother's ability to instruct her solicitors and Counsel in favour of a nine night/five night routine, plainly, in itself, shows a willingness to ensure the children's close and continuing relationship with the father. Hopefully, with the passage of time, the mother's emotions will settle so that these things will not be as difficult for her.
Ms S anticipates that the children, particularly, M, will be torn when the father moves out of the former matrimonial home. However, in practical terms he will be living close by.
There is no reason to think that either parent cannot provide for the children's needs.
M has had considerable emotional difficulties, described by Ms S and described by M, himself, to his counsellor, exemplified by the contents of exhibit 1.
Both parties demonstrate an excellent attitude to the children and the responsibilities of parenthood.
Neither proposal at this stage seems more or less likely to lead to other proceedings.
Thus, the parties' proposals are keenly balanced. Either would be appropriate for the children. However, there are a number of factors which, in my view, tilt the balance in favour of the father's proposal.
First, whilst the children have indicated they would prefer to be marginally more in the mother's care, it seems to me that eight nights/six nights is a marginal difference; whereas nine nights/five is not, the former, that is nine nights, being almost twice the latter, that is five nights.
Secondly, Ms S, who prepared a very comprehensive report, said that an agreement such as eight nights mother/six nights father would be supported (par 8.12).
Thirdly, it is significant I think that Ms S observed (par 8.3) that M, in particular, is feeling somewhat "torn" and at only 9½ years is about to experience his father moving out of the former matrimonial home, which would indicate to me that there should be as much balance as possible in relation to the time which M spends with each party, particularly the father.
The children are clearly bonded as siblings, so at this stage, at least, the children's arrangements should coincide. However, there would be no reason in the future why, for example, M could not have a father/son night with the father, and L a mother/daughter night with the mother, either by extending M's time with the father to seven nights/seven nights, or by leaving the arrangement as eight nights/six nights for M and adjusting L's time to nine nights/five nights.
For the moment, however, in my view, the children's best interests would be served by having nearly equal time with each party best represented by an eight nights/six nights regime rather than a nine nights/five nights regime. Such an arrangement would seem to me to be entirely consistent with Ms S' views.
In coming to this conclusion, I have considered very carefully Counsel's submissions, in particular Mr George's submissions for the mother, as to M’s particular difficulties highlighted in the counselling documents (exhibit 1), and the circumstance that L is only 7 years, as supporting his submission that the mother's proposal would be more likely to be in the children's best interests, added to which Mr George referred to the circumstance of the father's full time employment as indicating in favour of the mother's proposal.
On the other hand, however, Mr Forrest, for the father, referred to the circumstance that M's counselling documents (exhibit 1) are as yet untested and unsworn, and that the father's role in the children's lives historically was more involved before the separation than afterwards. Mr Forrest submitted also that in the absence of any expressed concerns by the mother as to the children's welfare while in the father's care it is difficult to justify a proposal that they spend five nights with him, but not six.
As I have said I have carefully considered these and all other submissions of Counsel, however, in my view, for the reasons stated, the children's best interests in the interim would be served by the eight nights/six nights regime.
The order will be that until further order - - -
RECORDED : NOT TRANSCRIBED
The children M born in January 1988 and L born in June 2000 spend time with the father from after school on Tuesday in each week until before school Monday in each week and all other time with the mother, this arrangement to commence upon the father moving out of the former matrimonial home.
RECORDED : NOT TRANSCRIBED
Yesterday I indicated that the other orders I would delay until today. So the order I have indicated will be the first order. The second order will be by consent in terms of the minute of orders handed up and signed yesterday, which I note take care of changeover and other arrangements. The third order will be, as I indicated yesterday, if the matter does not resolve at the conciliation conference scheduled for 11 September 2007 by consent the proceedings be transferred to the Federal Magistrates Court.
RECORDED : NOT TRANSCRIBED
Look, I take on board what you say. When I do it on the computer screen with the Associate I will make sure it reads appropriately. I will make it in each fortnight, in a fortnightly cycle.
RECORDED : NOT TRANSCRIBED
So what I should do is say for six nights in each fortnight being from Tuesday to Monday. If when you get the order it does not reflect what it should reflect would both of you please just send a joint email to the Associate, and if I get it wrong I will certainly amend it. All right. Now, good luck with the conciliation conference and, you know, these things are not set in cement. It is an interim order which I have made. The children's development is very much ahead of them and you are both to be commended for the extent of the agreement that you were able to make.
I hope you accept my judgment for the one matter that you were not able to resolve. As I said, in the future these things can change. The children are very young, and it may well be that their time with each of you coincides for a while but then as they get older it may well be a good opportunity for there to be one night a week that M is with you, Mr Dwyer, and L with you, Ms Whale. Often it pans out that way anyway. So please do not think that these arrangements are set in cement. They are interim only. It is not a circumstance where one of you has won and the other one has lost. Please do not look at it that way. Each of you genuinely has put forward a proposal for whether it is 9 nights/5 nights, or 8 nights/6 nights, you have heard my reasons for it being eight/six. So I hope that works.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly

Associate

Date: 17 August 2007

[2007] FamCA 1659

17 August 2007

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Jurisdiction

Procedural Fairness

Remedies