WING & LOR

[2010] FamCA 635

FAMILY COURT OF AUSTRALIA

WING & LOR [2010] FamCA 635

FAMILY LAW – CHILDREN – with whom a child spends time – best interests – orders made that the child spend extended periods of time with the mother

Family Law Act 1975 (Cth) ss 60CA & 60CC

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Wing

RESPONDENT: Ms Lor

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 1937 of 2009

DATE DELIVERED: 2 JULY 2010

PLACE DELIVERED:	ADELAIDE
PLACE HEARD:	ADELAIDE

JUDGMENT OF: BURR J

HEARING DATE: 2 JULY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MR RICHARDS
SOLICITOR FOR THE APPLICANT:	CLELANDS

COUNSEL FOR THE RESPONDENT:	MS PYKE QC
SOLICITOR FOR THE RESPONDENT:	GORDON CHENG

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MS LEE
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	LEGAL SERVICES COMMISSION

Orders

1. That the mother spend time with the child N born … September 2002 during the 2010 mid year school holiday periods as follows:-

   (a)    from the conclusion of school this day (2 July 2010) until 7.30 pm on Saturday 10 July 2010;

   (b)    from the conclusion of school on Friday 24 September 2010 until 7.30 pm on Saturday 2 October 2010.

2. That save and except with respect to handovers which occur at the child’s school, handovers at the commencement and conclusion of each period are to be conducted at the L Children’s Contact Service (“CCS”) UPON NOTING that in the event that there is a delay in such CCS facility becoming available to the parties or for any other reason the CCS facility is not available to the parties, then handovers are to be conducted inside the Adelaide Police Station in the following manner:-

   (a)    with the mother arriving and placing herself inside the Adelaide Police Station by no later than 10 minutes prior to the commencement of each period of time she is to spend with the child;

   (b)    with the paternal grandmother and the child arriving no earlier than 10 minutes prior to the commencement of each period of time the mother is to spend with the child;

   (c)    with the paternal grandmother arriving and placing herself inside the Adelaide Police Station by no later than 10 minutes prior to the conclusion of each period of time the mother is to spend with the child;

   (d)    with the mother and the child arriving no earlier than 10 minutes prior to the conclusion of each period of time she is to spend with the child

   UPON CONDITION that neither the paternal grandmother nor the mother are to be accompanied at handover by any person other than the child the child.

3. That the mother is restrained and an injunction is hereby granted restraining her from undertaking any form of employment or engaging in any business activity at the business premises at which she is employed during the period of time she is otherwise ordered to spend time with the child.

4. That the mother’s Application in a Case filed 7 June 2010 is otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1937  of 2009

MS WING

Applicant

And

MS LOR

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today the mother’s Application in a Case filed on 7 June 2010 in which she seeks to spend some holiday time with the child N (“the child”) who is approaching 8 years of age, having been born in September 2002.  The application is opposed by the paternal grandmother in her Response to an Application in a Case filed on 25 June 2010.

2. The paternal grandmother’s case is clearly not that she has an objection to the mother spending time with the child, but rather that there ought to be some graduated approach to the times that the mother and the child spend together.  In her Response to an Application in a Case she sets out in some detail her proposals for the mother to spend time with the child during the upcoming mid-year school holiday periods.

3. A number of reasons are advanced by the paternal grandmother for her decision and those reasons are contained in the affidavit also filed by her on 25 June 2010.  Her concerns are that the mother is not abiding the conditions imposed upon her time with the child in that she is still taking the child to her workplace.  She has further concerns about some toileting issues when the child has been returned from spending time with his mother.

4. In her most recent affidavit filed on 1 July 2010 the mother provides explanations as to the child’s presentation after periods of time spent with her in response to the paternal grandmother’s allegations.

5. As Counsel for the paternal grandmother has pointed out, the Court does not have any opportunity to test the veracity of the conflicting information contained in the affidavit material.  If there is to be a trial in the matter, that will be the only occasion when there will be an opportunity to test the evidence.  However, the mother’s application is supported by the Independent Children’s Lawyer and in my view it would represent the child’s best interests to have a lengthier period of time with his mother. 

6. There are no suggestions contained in the recent affidavits filed by the paternal grandmother that there are serious issues impacting upon the child’s best interests.  Certainly there are some matters of concern which will still need to be addressed but I need to balance those with the value to the child of spending an improved and increasingly meaningful relationship with his mother.

7. In making this decision, as the Full Court indicated in Goode and Goode (2006) FLC 93-286 that all of the relevant factors under Part VII of the Act must come into play in this interlocutory determination, I have had regard to the relevant sections and particularly Section 60CA and Section 60CC. Of the two primary considerations to which my attention is drawn in Section 60CC, I deem, on balance, that I need to be concentrating my attention on endeavouring to create a more meaningful relationship between the child and his mother in circumstances where he is nonetheless safe and secure. I am confident in these orders that I make that he will be.

8. I have had general regard to all of the additional considerations contained in Section 60CC but I consider it inappropriate in this short interlocutory event to provide detailed reasons in relation to each and every sub-section.

9. Thus, on balance, I believe it would represent the child’s best interests for him to spend extended time with his mother during the mid year school holiday periods. 

I certify that the preceding nine (9) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: