YORKE & JOSELAND

[2015] FamCA 399

FAMILY COURT OF AUSTRALIA

YORKE & JOSELAND [2015] FamCA 399

FAMILY LAW – CHILDREN – Interim Orders – where father seeks to gradually increase time spent with children to week about – where mother opposes any increase in time until the preparation of a family assessment report – where children exposed to parental conflict – best interests of the children – benefit to the children in maintaining meaningful relationship with the father – orders made for limited increase in time spent with the father.

Family Law Act 1975 (Cth)

APPLICANT: Ms Yorke

RESPONDENT: Mr Joseland

FILE NUMBER: ADC 4893 of 2008

DATE DELIVERED: 19 May 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tinning

SOLICITOR FOR THE APPLICANT: Cardone & Associates

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In Person

Orders

BY CONSENT IT IS ORDERED THAT

1. The father spend time with the child B born on … 2005:

   (a)from 11.00 am on Friday 3 July 2015 to 5.00 pm on Wednesday 8 July 2015;

   (b)from 5.00 pm Sunday 12 July 2015 to 5.00 pm on Sunday 19 July 2015.

IT IS FURTHER ORDERED THAT

1. The final application proceedings be referred to the list of matters awaiting trial allocation and are adjourned for trial directions before the Docket Registrar on a date to be advised by the Court UPON NOTING the current estimate for the length of trial is unknown and UPON FURTHER NOTING that when further directions are made for the trial to proceed that directions be made for an updated family assessment report to be prepared by Ms C (if available for her to carry out the report in the appropriate time) otherwise it be by a Family Consultant employed by the Court.

2. Pursuant to Section 68L of the Family Law Act 1975 (Cth) as amended the children D born on … 2001 and B born on … 2005 be independently represented and that such representation be arranged by the Legal Services Commission of South Australia and that to expedite the appointment of the Independent Children’s Lawyer with seven [7] days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.

3. During school terms the father spend time with the child the child commencing after the completion of school on Friday 22 May 2015 and to return the child to school at the commencement of school on Monday 25 May 2015 and each alternate weekend thereafter.

4. The mother’s Application in a Case filed on 30 October 2014 is dismissed and removed from the active pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yorke & Joseland has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4893 of 2008

Ms Yorke

Applicant

And

Mr Joseland

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In relation to this matter, which is listed before the Court for interim determination following previous ongoing proceedings, I have taken into account the submissions received by the father who is unrepresented and on behalf of the mother from her counsel. 

2. I have also received two affidavits, one from the father, and one from the mother, filed late on 15 May 2015.  There is a considerable amount of material which is in dispute concerning the matters which the Court has to determine before making final findings in relation to what is in the best interests of these children. 

3. The documents before the Court seem to indicate that the father was not proceeding with any litigation in relation to the eldest child, D, but, in submissions, he puts to me from the bar table today, he makes it clear that he is not prepared to agree to an order which would give the mother sole parental responsibility in relation to the child.  The matters that have to be determined by me this morning are primarily what orders should be made in relation to the father spending time with the younger child, B, who was born in 2005, and is, therefore, aged nine. 

4. I have already made the orders which provide for the father to spend time with the child during the approaching July school holidays, and those orders have been made by consent following what I understand is negotiations made between the parties. 

5. The orders which are being sought by the father in relation to interim time with the child are set out in the Amended Response to the Initiating Application which was filed on 30 March 2015.  The attachment refers to both interim and final orders being sought, and, specifically, the matter which requires consideration today is the order that the father have:

   “An additional night each month until [the child] achieves seven nights per fortnight in accordance with the following table.”

6. Then there is a table which is annexed to the application, which deals with the current time, which is each alternate weekend involving the child, B, spending time with the father on Friday night and the Saturday night. 

7. He is now seeking an increase as of 22 May 2015 to have the child returned on Monday morning, presumably to school, each alternate weekend, and then increasing to returning the child to school on the Tuesday morning in June 2015, the Wednesday in July 2015 and the Thursday in August 2015, until the middle of September 2015, when there would be what would be otherwise described as a “week-about arrangement”. 

8. The material before the Court clearly indicates the parents have considerable difficulty in agreeing what is in the best interests of their children and considerable difficulty in making arrangements and conducting their affairs in a manner which is in the best interests of the children.  The Court is not yet in a position to determine if only one party has responsibility for this appalling difficulty created for the children or whether it is both parties, and if it is only one party, which party. 

9. The difficulties have arisen already in relation to the child, D, who appears to have suffered considerably as a result of the ongoing dispute between the parents.  The Court is not in a position, as I have indicated, to determine who is responsible for the difficulties the children are facing, but the Court must take into account as the primary considerations, even on an interim basis, what is in the best interests of the children, that it is primarily essential to take into account the need to protect the children from harm, and that includes psychological and emotional harm, and the benefit to the children of having a meaningful relationship with both of the children’s parents and other significant persons. 

10. I take into account that in relation to the unfortunate position in which these children find themselves, the child will be spending time with the father where it appears that her sister, D, has not been able to maintain or there has not been maintained a relationship between D and the father, and this will be, clearly, an unusual circumstance for a child of the child’s young age, and particularly taking into account the ongoing litigation and difficulties being created by the parents. 

11. The emphasis in this case, however, I believe, must be to take into account the material that both parties have put before the Court, and consider whether there is a clear benefit to the child and is in the child’s best interests for any increase of time to take place before there is another family report prepared and on what terms that extra time should be.  It is proposed by the mother that there be a further family report prepared by Ms C, who has previously prepared reports in this matter. 

12. A further report is not opposed by the father, but he opposes the report being prepared by Ms C, and raises issues concerning her independence and refers back to past comments made by Judge Brown in the Federal Circuit Court, when the matter was in that Court. 

13. The Court also understands that the matter should be referred for final consideration and the issues then clearly determined on the basis of what is in the best interests of both children when the evidence has been tested. 

14. In the Court’s view, it is not in the children’s best interests for several reports to be prepared, exposing the children to further involvement in this ongoing litigation between their parents, and, therefore, it is in the children’s best interests that the risk of several reports having to be prepared for this matter should be overridden.

15. I will make a direction that the matter be referred to the docket registrar for inclusion in the trial list on the relevant date, and that when further directions are made for the trial to proceed, directions be made for an updated family consultant’s report to be prepared, and if Ms C is available to carry out the report within the appropriate time, that it be Ms C, but, otherwise, it be by a Family Consultant employed by the Court. 

16. In relation to the question of the interim orders to be made in relation to the child, I consider that it is in the child’s best interests for there to be an increase in the time, such that during school terms, the time that the child spends with the father commence at the conclusion of school each alternate weekend and conclude at the commencement of school on the Monday, thus, increasing the time the child spends with the father to include the overnight on Sunday night each alternate weekend. 

17. I have taken into account the submissions made by counsel for the mother that this would restrict the time that the child and D previously had together on Sunday night, but consider that the benefit to the child of having the extended time with the father during this period outweighs that restriction.

18. I also consider that it is not appropriate for there to be a further increase of time pending the resolution of this matter at this stage because of the need for the arrangements to be settled and giving the child, the child, an opportunity to relax and enjoy the time, rather than having the time frequently changing.

19. In relation to the appointment of an Independent Children’s Lawyer, I take into account that there have been significant issues raised in relation to the child, D, and her health, and there are ongoing issues in relation to the parties’ inability to agree arrangements for the care of the child, and, therefore, consider it appropriate to order that both children have the benefit of an Independent Children’s Lawyer. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 19 May 2015.

Associate: 

Date:27 May 2015