Wong and Wei

[2009] FamCA 439

FAMILY COURT OF AUSTRALIA

WONG & WEI [2009] FamCA 439

FAMILY LAW – CHILDREN – interim parenting orders – directions for trial

Family Law Act 1975 (Cth)

HUSBAND: Mr Wong

WIFE: Ms Wei

FILE NUMBER: MLF 3853 of 2007

DATE DELIVERED: 7 April 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 7 April, 2009

REPRESENTATION

THE HUSBAND: In person

COUNSEL FOR THE MOTHER: Mr. R. McIvor

SOLICITOR FOR THE MOTHER: Westminster Lawyers

Orders

1. That paragraphs (1) to (5) of the orders made herein on 14 April, 2004 be discharged. 

2. That until further order the child … born … December, 1999 (“the child”) live with the wife.

3. That until further order the parties have equal shared parental responsibility for the child.

4. That until further order the child spend time and communicate with the husband as follows :

   (a)on each Wednesday, from 4:00 pm. until 7:00 pm.;

   (b)until the weekend commencing Saturday 6 May, 2009, on each Sunday from 12:00 noon until 5:00 pm.;

   (c)commencing on 6 May, 2009 and each alternate weekend thereafter, from the conclusion of Mandarin classes at 12:30 pm. on Saturday until 5:00 pm. the following Sunday;

   (d)by telephone on each Tuesday and Friday, before 8:00 pm.;  and

   (e)at such other times as are agreed between the parties. 

5. That save for occasions when the child is collected by the husband from Mandarin classes on a Saturday, the husband collect and return the child at the wife’s residence. 

6. That until further order neither party discuss these proceedings or denigrate the other in the presence or hearing of the child.

7. That a family report be prepared and released by 31 August, 2009.

8. That on or before 9 October, 2009 each of the parties file and serve :

   (a)an affidavit containing his or her evidence in chief;

   (b)a statement of financial circumstances, using form 13;  and

   (c)an affidavit of each other witness on whom he or she intends to rely.

9. That the competing applications for final parenting and property orders be listed for trial at 10:00 am. on 2 November, 2009, subject only to a part heard case.

10. That pursuant to s 62B and s 65DA(2), of the Family Law Act 1975, 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 adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

11. That the reasons for judgment this day be transcribed and copies made available to the parties.

12. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 3853 of 2007

MR WONG

Husband

And

MS WEI

Wife

REASONS FOR JUDGMENT

1. This case concerns the parties’ child, a son. He was born in December 1999; he will be 10 in December this year.  The child currently lives with his mother and spends time with his father on each Sunday from 12 noon to 5 pm, pursuant to an order made in 2004, a long time ago, when the child was much younger.

2. The order also provides for the father to spend time with the child on Wednesdays from 3.30 to 6.30 pm.  There may be a dispute between the parties as to whether that time has been taken.

3. Before the court is a children and parents' issues assessment prepared by Mr K, which contains a thorough and cogent account of the parties' respective positions and his professional assessment.  It is not a family report. I will order the preparation of a full family report which will enable a fuller assessment of the parties, their interactions with the child and their proposals. That will be released by 31 August, looking towards a trial at the beginning of November. Today, the court needs to consider what time the child should spend with his father until then.

4. Mr K has stressed the importance of respecting the child’s views and wishes about his future care.  In his view the parents need to give some thought to improving their parental relationship for the sake of their son.  The mother needs to give some thought to increasing the time the child spends with his father; both of them need to desist from discussing the case and putting pressure on the child, who should not be burdened with these adult concerns.

5. The child described in this assessment sounds like a thoughtful, gentle and delightful boy. That is a credit to his mother, with whom he has lived all his life and, to the extent of his interaction with his father, to his father, too.

6. The mother proposes quite a significant increase in the time the father spends with the child, by restructuring the arrangement so, starting at the beginning of June, the child would spend each alternate weekend from the conclusion of Mandarin classes, at about 12.30pm Saturday, until 5 pm on Sunday with his father.  That would mean the introduction of overnight time.  It would mean a very considerable increase on the present two, five-hour a fortnight periods.  It would enable the father and the child to spend a block of time together and undertake weekend activities. The mother proposed the retention of time after school on Wednesdays, commencing at 4.00pm and concluding at 7.00pm.

7. While the father would like, he says, to enjoy overnight time with the child on each alternate weekend as proposed, he would like to see the child for five hours on other weekend, as well.  At this time, his long‑term proposal is that the child spends all weekends and all school holidays with him; he did concede the potential for this to be half school holidays.  That matter will be determined in due course.

8. I am satisfied that the orders proposed by the mother are likely to benefit the child in the short term.  They will strengthen his relationship with his father, because he will have a much longer block of time, from 12.30pm on Saturday right through to 5:00pm on Sunday.  He will go to bed and wake up at his father's home.  He can be involved in his father's life and in the lives of his father’s friends and family and in other social activities.  In my judgment, he also needs to have an opportunity to spend one weekend out of two in his mother's environment, without interruption, so she can involve him in family and other social activities, and he can maintain social activities with his friends. The latter is increasingly important for boys as they approach their teens.

9. These are interim orders.  Neither of the parties should take the view that they determine the issues in dispute or what will happen in the long term.  It is to be hoped that these orders can build and strengthen the father's relationship with his son.

10. It would be premature to consider whether an order should be made for equal shared parental responsibility. That can be determined after more evidence is before the court.

11. A family report will be prepared and released by 31 August 2009 by Mr K. By 9 October 2009, each of the parties must file and serve an affidavit sworn by him or her and a statement of financial circumstances, and all other affidavits on which they intend to rely. The applications will be listed on 2 November 2009, subject to compliance with directions and subject to any part-heard case.

I certify that the preceding
paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.