[2019] FamCA 149

FAMILY LAW - CHILDREN - Parenting - dispute as to time child is spending with parties - school holiday periods

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

(1) I discharge Order 5 of the orders of Judge Tonkin of 29 August 2017 as it relates to handovers.

(2) I discharge Order 10 of the orders made by me on 15 November 2018 as they relate to handovers.

(3) It is ordered that:

• (a) When the child's changeover time coincides with the school time then handover will occur by one parent delivering the child to the school and the other collecting the child from the school;

• (b) When the child's changeover time does not coincide with school the handover shall occur, unless otherwise agreed in writing outside Coles at Suburb H shopping centre at the time specified in the relevant order;

• (c) For each gazetted ACT school holiday period the time the child is to spend with her Father pursuant to Orders 4.7 and 4.8 of the orders of Judge Tonkin of 29 August 2017 is suspended and in lieu he shall spend a period of time from the last day of school term until 5:30pm on the fifth day of the school holidays;

• (d) During the Christmas school holiday period the child shall spend a further three periods of five days with her Father, provided they are not consecutive with another period as agreed between the parties in writing, and failing agreement by shortlisted order of this Court;

• (e) Order 4.9 of the orders of Judge Tonkin of 29 August 2017 as it relates to school holiday time is discharged;

• (f) The Father shall cause the child to telephone her Mother at 7pm on the second and third days of her school holiday time with him for a period of not less than five minutes at which time the Father shall afford the child privacy so that she may speak with her Mother.

(4) The matter is transferred to the Registrar's list pending further application by one of the parties or the matter being removed from the list for the purposes of preparing it for trial.

Note: The form of the order is subject to the entry of the order in the Court's records.

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

Note: This copy of the Court's Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

1. There are two issues at stake, one relates to the holiday time that the child will spend with her Father and for which there is currently no provision in the orders, and the second relates to handover arrangements when they do not take place at the child's school.
2. The Father asks in the context of what is currently a 9/5 split that the child spend approximately half the school holidays with him. The Mother opposes this in part on the basis that she says that the child has spent no more than five nights away from her in the past.
3. Each of the parents alleges that the child suffers distress caused by the other parent.
4. The Father seeks time to be able to do things such as to go camping with the child on holidays. He says that the current arrangements do not allow him sufficient time to do that as often the weekends are taken up with the child's other activities.
5. The balance to be struck between the competing claims by the parties about the child's distress with the need to provide her with time to have and enjoy her relationship with her Father means that the resolution of this dispute is to consolidate during school holiday periods the 9/5 times so that the Father will have a block of five days with the child. The proviso to allow this to occur will be that the child will be able to speak to her Mother on two short occasions by telephone during this period of time.
6. The second matter relates to the handover arrangements where they do not occur at school the current orders provide that they are to take place outside Coles at Suburb H.
7. The Father seeks to substitute for this arrangement an arrangement where the handovers will take place at the police station rather than at Coles. The Mother seeks that they remain at Coles. The Father alleges, and the Mother denies, that she has been abusive and spat at him at the handovers a Coles. Coles is in a public place, presumably covered by closed-circuit television, likely to have security persons present and also likely to have numerous other people present. Those matters should be considered to provide sufficient protection in the current circumstances and absent providing that protection, provide sufficient accountability as it will be possible, one would expect for the parties to subpoena the product of closed-circuit television cameras should some fracas ensue.
8. What undermines the notion that the handover should occur at the police to take away even this risk is the spectre of exposing the child to repeated attendances at the police station. Aside from the usual business which is associated with police stations it may unfortunately reinforce to the child what is said to be the Father's position, that is that the Mother is a person of bad character. The fact that the child has to go to the police station for her parents to be near each other may well reinforce this matter to the child to her detriment.
9. Accordingly I will order that the handovers take place outside Coles at Suburb H.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 March 2019.