WILLIAMS and Lethbridge

[2010] FamCA 757

FAMILY COURT OF AUSTRALIA

WILLIAMS & LETHBRIDGE [2010] FamCA 757

FAMILY LAW – CHILDREN – Final consent child and parenting orders

APPLICANT: MS WILLIAMS

RESPONDENT: MR LETHBRIDGE

FILE NUMBER: MLC 5089 of 2009

DATE DELIVERED: 9 AUGUST 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 9 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dowler

SOLICITOR FOR THE APPLICANT: Stephen Farmer & Associates

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED BY CONSENT:

1. THAT the child of the relationship, G born … May 2006 live with the mother.

2. THAT the parents have shared parental responsibility for the child save and except that the mother have the sole responsibility for all issues relating to the education of the child.

3. THAT the father spend time with and communicate with the child as follows:-

   a)in Melbourne from 4:00 p.m. Friday until 4:00 p.m. Sunday on the weekends commencing 10 September 2010 and 5 November 2010; and

   b)in Melbourne from 10:00 a.m. Sunday 28 December 2010 until 4:00 p.m. Monday 29 December 2010; and

   c)In Devonport from 12:00 noon 21 January 2011 until 9:00 p.m. 22 January 2011; and

   d)In Devonport for three (3) nights in the 2011 Victorian school first term holidays by agreement and failing agreement from 12:00 noon on the first Saturday of the holidays until 12:00 noon on the following Tuesday; and

   e)in Devonport for four (4) nights in the 2011 Victorian school second term holidays by agreement and failing agreement from 12:00 noon on the first Saturday of the holidays until 12:00 noon on the following Wednesday; and

   f)in Devonport for six (6) nights in the 2011 Victorian school third term holidays by agreement and failing agreement from 12:00 noon on the first Saturday of the holidays until 12:00 noon on the following Friday; and

   g)in the Christmas long vacation:-

   i)from 3 January 2012 for seven (7) nights and each alternate year thereafter; and

   ii)from 23 December 2013 for seven (7) nights and each alternate year thereafter;

   h)for seven (7) nights during the Victorian school term holidays from the commencement of the first term holidays in 2012, such time to commence on the first Saturday of the holidays; and

   i)by telephone between 6:00 p.m. and 6:15 p.m. on Wednesday and Sunday evenings with the father to call the mother's mobile and the mother to ensure the phone is on and charged; and

   j)as otherwise may be agreed as between the parties from time to time.

4. THAT for the purposes of the time spent by the child with the father:-

   a)the father pay all the child’s return airfares between Melbourne and Tasmania; and

   b)for the purposes of the time provided for in paragraphs 3(a) and (b) hereof all changeovers occur at the mother's home; and

   c)for the purposes of the time provided for in paragraph 3(c) hereof:-

   iii)the mother travel to Devonport with the child and the mother bear the costs of her travel to Devonport but not those of the child;

   iv)the father be solely responsible for the costs incurred by the mother to be accommodated in a motel or hotel on the nights of 21 January 2011 and 22 January 2011;

   v)the mother stay at accommodation in Devonport, as agreed between the parties and failing agreement then the father provide the mother with a list of three motels and/or hotels that he proposes and she select the accommodation;

   d)for the purposes of the time provided for in paragraphs 3(d), 3(e), 3(f), 3(g) and 3(h) all changeovers are to occur at Tullamarine Airport, Melbourne;

   e)the father provide the mother with fourteen (14) days' notice in writing on any occasion on which he is unable to spend time with the child pursuant to these Orders;

   f)the father advise the mother as to where the child is staying whenever the father spends time with the child in Melbourne;

   g)the father accompany the child on all flights between Melbourne and Tasmania until the child turns 10 years of age.

5. THAT the time provided for in paragraphs 3(c), 3(d), 3(e), 3(f), 3(g) and 3(h) hereof is conditional upon the father complying with the time provided for in paragraphs 3(a) and 3(b) hereof and the father have liberty to apply in the event he fails to comply with paragraphs 3(a) and 3(b).

6. THAT the father immediately provide the mother with details of his current residential address and notify her of any change to it within seven (7) days of the change.

7. THAT each of the parties keep the other advised of their current mobile and landline (if any) telephone numbers.

8. THAT during times the child spends with the father in Tasmania pursuant to paragraphs 3(a), 3(e), 3(f), 3(g) and 3(h) hereof the father facilitate the child receiving a telephone call from the mother between 6:00 p.m. and 6:15 p.m. on Saturday nights the child is in the father's care.

9. THAT the mother as soon as practicable cause a passport application for the child to be forwarded to the father by post and the father return by post the said application signed by him to the mother no later than fourteen (14) days after receipt by him of same.

10. THAT in the event the mother proposes to take the child outside of Australia for a holiday she provide the father within thirty (30) days written notice of such intention, including providing the father with an itinerary and details of where the child will be staying and a contact telephone number.

11. 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.

12. THAT all previous Orders be discharged.

13. THAT all extant applications be dismissed and proceedings be removed from the docket of the Honourable Justice Young.

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 5089 of 2009

MS WILLIAMS

Applicant

and

MR LETHBRIDGE

Respondent

REASONS FOR JUDGMENT

1. This matter was listed before me as a first day, less adversarial hearing.  Ms Dowler of counsel appeared for the mother, who was in Court throughout the proceedings.  The father appeared in person, and he had flown from Devonport, Tasmania for the hearing this day.  The parties had prepared appropriate questionnaires and there had been previously ordered and there was filed with the Court an updated family report from Ms E, Family Consultant, dated 20 October 2009.  I had read that document and the earlier orders that had been made in this Court on 25 November of last year by Senior Registrar FitzGibbon.

2. The child in this case is G, born in May 2006, now four years of age.  The parents did not marry and, after the child’s birth, separated, with the father travelling first to New South Wales and thereafter relocating in Devonport, where his maternal family largely reside.  He has struck up a new relationship and is to marry early next year.  The mother lives in Melbourne and has a new friend, Mr R, with whom she does not reside full-time.  Both of the supporting partners were in Court throughout the proceedings this day.

3. The mother’s solicitor filed an amended initiating application for further orders sought.  The father prepared a document which set out the orders now sought by him and that I have had marked exhibit “F2” in these proceedings.  Additionally, to overcome his concerns of properly informing the Court of matters in support of his case, the father prepared a statement as to “Custody Arrangements for [the child]” which I have had admitted as an aide-memoire to the Court and marked as exhibit “F1”.  I have read those documents together with those filed on behalf of the mother.

4. What was apparent from the Family Report in this matter was that this is not a family beset by significant disruption, violence, abuse, and other matters that so often come before the Court.  G has seemingly prospered in her mother’s care and seems wholly age-appropriate and well-developed.  She has spent some limited time with her father, and her best interests will require further time with him, provided he puts her interests first and is available to establish a meaningful and continuing bond.

5. When the parties came before me the issue was largely agreed that the father spend some continuing time with the child.  The central issue was on how many occasions, with what regularity, and in what location.  All of the orders were prefaced upon the child continuing to live with her mother.  I conducted this less adversarial hearing effectively by way of discussion with the parties.  No evidence was formally taken in Court and there was no cross-examination.  I was somewhat forthright in my suggestions to the parties that they should compromise.  The overwhelming requirement here is what is best for the child, and part of that is two parents who retain a level of communication skills with each other.  It is also important to end the proceedings, to have finality, and for no more money to be spent on legal expenses, as those moneys could well and truly be better spent on the child and her education, lifestyle, and upbringing.

6. There were some difficult issues in this case surrounding the timetable for travel and for time to be spent with the child.  The father is in employment but no doubt has considerable expenses in his own life with his forthcoming marriage and in travelling to Victoria, air flights, accommodation, travel expenses.  The mother, on the other hand, is receiving government assistance and does not as yet live permanently with her friend.  The balance is to maintain a relationship that is proper for the child and will be ongoing and not fall short because of lack of airfare moneys or whatever.

7. Ultimately the parties agreed and I endorsed that there should be an equal shared parenting arrangement.  Because of distance and by agreement with the father, what is excluded from that arrangement is education, which will be the sole domain of the mother.  Issues such as health, wellbeing, religion - if at all relevant - should be the subject of parental discussion. 

8. The issue central to this case is the father building up and maintaining a relationship with the child.  He will have three periods of time spent with her in the balance of this year.  Thereafter for his wedding in January of next year, the child can go at his expense to Devonport;  the mother will travel at her expense and be accommodated overnight for two nights.  There is a structure of holiday time that is appropriate, provided the parents keep to the regime and provide clear written notice if there are changes required, as there will be from time to time.  However, the more changes that occur, the more difficult it is to maintain arms-length orders going forward.

9. Throughout this hearing and observing the parties today, I have a concern that financial issues could disrupt this arrangement from both sides, but that should not be the case.  There will be ups and downs, but ultimately, all of the options in the orders are cheaper emotionally and financially than coming back to Court and spending money.  The father will forthwith sign the passport application.  I see no risk of the mother absconding.  My current impression of her is that she would rather live in Melbourne or that part of Victoria than somewhere in Bali or overseas.  She would rather be with her family and understands that the child’s life would be better in Australia.  I am somewhat confident that is the case.

10. As for the father, he should look on the bright side, and if and when he is successful in life and made money, he can take his daughter to Disneyland or wherever, and he will have the passport for that as a goal.  But that is way in the future.  The orders represent a sensible compromise.  They facilitate the child having the substantial time with her mother and some time with her father.  The child can be at the wedding of her father and will be attending school in the Melbourne area in future years.  There is no property settlement as I am advised in this case.  I remain unsure why the proceedings were issued in this Court rather than in the Federal Magistrates’ Court, but that’s now a matter of historical event only.

11. For the purposes of the orders that are made today, I make it clear that the parties have had ample opportunity out of Court to reflect upon, to negotiate, and with the assistance of counsel for the mother, orders have been produced that reflect various discussions in this courtroom and what I think is a sensible outcome for G.  Given these are brief ex tempore reasons delivered in Court with another matter about to start, I will not have detailed reference to the Family Law Act 1975 and its various provisions.  I am satisfied the order is made in the best interests of G.

12. I have reflected upon and raised in discussion with parties the various primary and additional considerations of section 60CC(2) and (3) and otherwise the further considerations as to equal shared parental responsibility and what is reasonably practicable within all of the circumstances, having regard to section 65DAA.  All matters considered, I intend to pronounce these orders as final orders which I will have engrossed by the solicitor for the mother and forwarded by email transmission to my associate forthwith

RECORDED:   NOT TRANSCRIBED

I certify that the preceding twelve (12) paragraphs
are a true copy of the reasons for judgment of the
Honourable Justice Young delivered 9 August 2010.

Associate: …………………………………

Date:  ………………………………………