AB & BJB
[2006] FMCAfam 258
•6 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AB & BJB | [2006] FMCAfam 258 |
| FAMILY LAW – Children – application to vary existing contact orders – no substantial change in circumstance – failure to meet Rice v Asplund requirements. |
| Family Law Act 1975, ss.60B, 117 |
| Rice v Asplund (1979) FLC 90-725 Newling v Mowle (1987) FLC 91-856 Zabaneh (1991) FLC 92-191 Bennett v Bennett (1991) FLC 91-617 B and B: Family Law Reform Act (1997) FLC 92-755 |
| Applicant: | AB |
| Respondent: | BJB |
| File number: | MLM2282 of 2004 |
| Judgment of: | Ryan FM |
| Hearing date: | By way of written submissions |
| Date of last submission: | 1 May 2006 |
| Delivered at: | Parramatta |
| Delivered on: | 6 June 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Kligers Partners |
| Respondent in person: | AB |
ORDERS
That Order 8(f) made in the Federal Magistrates Court on 25 May 2004 is varied as follows:
a)In the event the husband is residing interstate or more than 100 kilometres from the wife’s residence, the husband is to have contact with the children SIMON (not his real name) born in 1997 and DOMINIC (not his real name) born in 1999 for one half of the long summer vacation period by agreement and failing agreements as follows:
i)For the first half, commencing 10.00am 23 December 2007 until 6.00pm 10 January and in alternate years thereafter;
ii) For the second half, commencing 10.00am 11 January until 6.00pm 26 January and in alternate years thereafter. In the event that the school year commences prior to January 26 in each year the contact is to end 6.00pm on the day before school commences.
In relation to contact provided for in Order 8 of the orders made in the Federal Magistrates Court on 25 May 2004 in the event that weekend contact occurs on a day adjacent to a public holiday or a pupil free day, contact is to be extended to include the public holiday or pupil free day. If the public holiday or pupil free day falls on a Friday, contact is to commence at the usual time of Thursday. If it falls on a Monday, contact is to conclude at the usual time on Monday.
All communication between the parties shall be by way of email and sms, except in the event of an emergency.
For the purpose of Order 3, the parties are to ensure they provide each other with a current email address and mobile phone number at all times.
All outstanding applications are otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
MLM 2282 of 2004
| AB |
Applicant
And
| BJB |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings in which both parties are seeking to change existing contact arrangements between the husband and the parties’ two children, Simon (not his real name) born in 1997 and Dominic (not his real name) born in 1999.
Orders were first made in this matter by consent in the Melbourne registry of the Family Court on 7 August 2003. The orders related to both parenting and property issues. The parenting orders were then varied by consent in the Federal Magistrates Court in Melbourne on
25 May 2004. These orders were extensive, totalling some eight pages, and set out the contact arrangements in the event the husband is residing within 100km of the mother’s residence, and also if he is residing interstate or further then 100km away. Telephone contact orders were also made. These are the current orders pursuant to which contact has been taking place for two years.
On 14 September 2005 the husband filed an application in Parramatta, seeking to amend the Christmas contact order. This order provides that the husband has contact for “One half of the long summer vacation period, being the first half commencing on the Sunday after the conclusion of the school year in 2005/2006 and each alternate year thereafter and the second half in 2006/2007 and each alternate year thereafter”[1]. As a consequence of the Victorian school year ending on 21 December 2005, changeover in accordance with the orders would occur on Christmas Day. To remedy this, the husband sought the order be amended so that contact would occur either from the Sunday after the conclusion of school, or from the 23rd December, whichever first occurred. Before me and by consent the parties’ agreed to this occurring for Christmas 2005, with the matter adjourned in relation to final orders until early 2006.
[1] Order 8(f) of orders made 25 May 2004.
The hearing
Given the nature of the orders sought, and the history of this matter, the parties’ agreed that the most appropriate way to deal with the issues was by way of a hearing determined on the papers and by written submissions. On 17 February 2006 I made directions in relation to these submissions, and how the matter was to proceed. The orders were as follows:
THE COURT ORDERS THAT BY CONSENT:
1. All current interim applications are withdrawn and dismissed.
2. The parties agree that the adjudication of the applications for final orders will be dealt with on the papers and by way of written submissions.
THE COUT FURTHER ORDERS:
3. The applicant shall file and serve an affidavit which sets out the orders finally sought together with the evidence in support of that application by 17 March 2006. That affidavit shall not be longer than twenty pages.
4. The respondent shall file and serve an affidavit which sets out the orders sought together with the evidence in support of those orders and in reply by 4pm on 29 March 2006. That affidavit shall be no longer than 23 pages.
5. The applicant may file and serve an affidavit in reply provided it is within 10 days. That affidavit shall be no longer than 5 pages long.
6. Both parties shall file and serve written submissions within ten days of the close of filing of affidavits.
As he filed first, the husband was given the opportunity to reply to the wife’s affidavit. Consequently, the husband now relies on the following evidence:
·His affidavit filed 15 March 2006;
·His affidavit in response filed 7 April 2006;
·His written submissions filed 18 April 2006.
The wife relied on the following evidence:
·Her affidavit filed 30 March 2006;
·Her written submissions filed 1 May 2006.
In her submissions the wife also sought to rely on her response and affidavit filed 1 December 2005. She also included the husband’s amended application and reply filed 9 February 2006, and his affidavits filed on 14 September 2005 and 8 February 2006. As my orders on
17 February 2006 made plain, the only evidence I would be taking into account were the written submissions, and the further affidavits ordered to from each party. No other earlier evidence will be given regard to.
An email was sent by the husband to my Associate on 24 May 2006 seeking that this matter be decided after 1 July 2006, under the new Family Law Amendment (Shared Parental Responsibility) Act 2006. This present application relates to the refinement of orders, and a rehearing of the substantive issues is not being undertaken. With respect to the husband, this is not a matter which would be more appropriately decided under the new legislation, and his request to this extent is refused.
Orders sought
Essentially the husband is seeking orders that will, in his opinion, “fine tune” the existing orders. The orders he seeks are:
1) That Order 8(d) of the Consent Orders made by the Federal Magistrates Court of Australia at Melbourne on 25 May 2004 (“the 2004 Orders”) be fine tuned to read:-
Up to three weekends in each school term, where the husband shall decide the dates for the weekend, from 6.00pm Friday to 6.00pm Sunday, provided that the husband gives the wife not less than 7 days notice in writing of his intention to exercise contact;
2) That Order 8(f) of the 2004 Orders be fine tuned to read:-
One half of the long summer vacation period, being the first half commencing on the Sunday after the conclusion of the school year in 2005/2006 or on 23 December, whichever occurs first, and each alternate year thereafter and in the second half in 2006/2007 and each alternate year thereafter.
3) That order 8(h) be added to read as follows:
In the event that a weekend contact period occurs on a day adjacent to a public holiday or pupil free day, it shall be extended to include the public holiday or pupil free day. If the public holiday or pupil free day is a Friday then contact shall start at the usual time on Thursday. If it is a Monday then contact shall conclude at the usual time on Monday.
4) That order 9(h) of the 2004 Orders be fine tuned to read:
In the event that a scheduled contact visit is cancelled or postponed by the wife after travel arrangements for the children and/or the husband have been made for a reason other than a medical emergency involving the children, then the wife shall reimburse the husband, within 30 days of the husband requesting in writing such reimbursement, any non-refundable fares or deposits paid by him and any cancellation fees for which he is liable as a result of the cancelled contact visit and any additional costs arising as a consequence of the rescheduling of contact, including but not limited to any increase in the costs of the airfares and likewise in the event that contact is cancelled by the husband then the husband shall reimburse to the wife any losses occasioned by her as a consequence of such cancellation upon proof of such losses being incurred.
5) that order 28 be added to read as follows:
That the mother pay the costs of an [sic] incidental to the proceedings.
For her part, the wife is seeking that the previous consent orders are entirely discharged and replaced with a regime that she believes will be more workable for the parties. The changes the wife is seeking are numerous but not necessarily substantial, and will be discussed in detail later. It is sufficient at this point to say that the wife faces a major hurdle to changes being made if she cannot demonstrate that there has been significant change to the parties’ circumstances since the consent orders were made. Rice v Asplund (1979) FLC 90-725.
Short history
The husband was born in Zurich Switzerland in 1965 and is 40 years of age.
The wife was born in 1965 and is also 40 years of age.
The parties married in Zurich in September 1994.
The parties’ eldest child Simon was born in Uster Switzerland in 1997.
In 1999 the parties son Dominic was born in Melbourne, Victoria. It appears the parties’ moved to Australia together to live prior to his birth.
The parties separated in February 2003. A decree nisi was pronounced on 18 October 2004, with the divorce becoming absolute one month later.
In April 2003 the husband left Melbourne and commenced residing in Sydney. The children remained living in Melbourne with the wife, as they had done since the time of separation. The children have continued to have regular contact with the husband, in accordance with the consent orders made 7 August 2003, and later the consent orders of 25 May 2004.
The parties’ circumstances
In cases where residence and contact are an issue, it is usually important to consider the circumstances of each party, and their capacity to care for the children in light of those circumstances. In this case however the care arrangements for the children are essentially well established. There is no challenge to the capacity of either party to care for the children, or to the fact that regular contact has and will continue to occur between the children and the husband. It is not necessary then to examine the individual circumstances of the parties to the extent in which one usually would in contact cases.
The husband works as a computer programmer in Sydney. He currently resides alone in a three bedroom unit in Harris Park. The children have their own bathroom in the home, and also their own bedroom which is furnished with toys, a computer and television, and other projects which they enjoy working on when they are in Sydney.
On the weekends in which the children are with the husband for contact, he collects them from Sydney airport off the Virgin flight which leaves Melbourne at 6.15pm and lands in Sydney at 7.35pm. They usually arrive home from the airport at around 9pm, then spend an hour together before the children go to bed at 10pm. On the other evenings where the children are at the husband’s home, their usual bedtime is between 8.30 and 9pm.
It is plain that both the husband and the children enjoy their time together, and that the current contact arrangement enables them to spend a reasonable amount of time together given the distance between the homes in which they reside.
The wife is employed as a human resource manager in Melbourne. She currently resides with the two children in Knoxfield Victoria. The wife’s material reveals little else about her current situation.
Relevant law
In all matters concerning parenting orders the best interests of the child are the paramount consideration. Although parenting orders are never final in the sense that the court or courts always retain jurisdiction a court will not readily re-open parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is known as the rule in Rice v Asplund (1979) FLC 90-725. In that case the Full Court of the Family Court was considering issues as to custody. That the rule also applies to access, now contact cases, is abundantly clear and I make reference to the Marriage ofNewling v Mowle (1987) FLC 91-856 and the Marriage of Zabaneh (1991) FLC 92-191.
The principle that underlies the rule is that it is, generally speaking, not in the interests of a child or children to have repeated applications concerning the child or their contact and residence before the court. There must, in other words, be an end to litigation. It is thus a specific application of the paramountcy principle. It is a matter for the individual judicial officer to determine whether this threshold issue is addressed as a discrete hearing or within the context of a complete trial, Bennett v Bennett (1991) FLC 91-617. In King and Finneran (2001) FLC 93-079 Justice Collier sitting alone as a Full Court discussed the rule in Rice and Asplund. His Honour held
“This case concerns proposed alterations to existing orders that are, whilst no doubt very important in the eyes of the appellant, such that they would cause small changes to the amount of time the children would spend with the husband if the orders as sought by him were made in their entirety. This is not necessary to protect the children. This is an important consideration.
Simply because the changes sought by the appellant are of a minor nature the threshold test is not reduced. Indeed, the less important or far reaching the change or alteration to orders that is sought to be achieved is, perhaps the more important it is to demonstrate a change of circumstances or fresh circumstances requiring a further hearing to achieve this result. This is so because the purpose of the rule is to protect the children from exposure to further unnecessary litigation. If it were open to a litigant to achieve a re-hearing because he were able to argue that the changes he sought were minor and accordingly the change in circumstances or fresh matters that he needed to raise were accordingly reduced, this would produce ridiculous and nonsensical results.”
In the circumstances of this matter then, it is necessary to determine whether or not the Rice v Asplund hurdle has been overcome by the parties’ in the instances where they sought a complete change to the exiting orders. As will be apparent, I am not persuaded that the parties’ have demonstrated the requisite change in circumstances that was necessary in order for the court to change the existing orders.
Contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child are the paramount consideration. That is the overriding principle.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
Has there been a change in circumstance?
On the face of it, there has been no material change in the circumstances of either party since the consent orders were made in May 2004. For abundant caution however, I shall consider each of the orders proposed by the wife, in light of the existing orders, and any evidence as to change in circumstance. Where the parties seek to “fine tune” the current orders to make them more workable, a change in circumstance does not necessarily need to have been demonstrated, and this will be considered separately.
To follow are the orders sought by the wife. For clarity I note the order sought by the wife in bold, with the current order to follow. Finally at each point I will note any evidence in relation to the change. Any orders which the wife seeks stay the same are not referred to.
That in the event that the husband and the Wife reside within a 50 kilometre radius of each other the Husband have contact with the children as follows:
That in the event that the husband and the wife reside within a 100km radius of each other, the husband have contact with the children as follows:
The wife proposes this change on the basis that the current 100km radius is “too cumbersome”, and would entail more than 1 hour driving each way. Aside from the fact this is not currently an issue, as the husband remains living in Sydney and the wife in Melbourne, there is no evidence from the wife as to the change in circumstance since the consent orders which has brought about the need for this change. In her submissions the wife contends at paragraph 5.4 that when the original orders were agreed, all of the parties resided in Victoria. Even if the orders referred to here are those made in August 2003, when the most recent consent orders were made, the parties were residing more than 800km apart in different states. At paragraph 4.7 of her submissions, the wife agrees with the husband’s contention that he left to reside in Sydney in April 2003, one month before the current orders were made. There being no relevant change in circumstance the order is not varied.
a) Each alternate weekend from 7.00pm Friday until 6.00pm Sunday, such contact to commence the second weekend after the husband commences residing in Melbourne;
a) Each alternate weekend from 7.00pm Friday until 5.00pm Sunday, such contact to commence the second weekend after the husband commences residing in Melbourne;
b) Each Wednesday from 3.30pm until 7.30pm, the husband to collect the children from school at the commencement of contact and the wife to collect the children from the McDonalds Restaurant nearest the husband’s residence at the conclusion of contact;
b) For four hours on the Husband’s birthday at times to be agreed between the parties and failing agreement from 3.30pm until 7.30pm with the Husband to collect the children from school at the commencement of contact and return the children to the Wife’s residence at the conclusion of contact;
c) For two hours on each of the children’s birthdays (provided they do not fall on school holidays) at times to be agreed between the parties and failing agreement from 3.30pm until 5.30pm with the Husband to collect the children from school or the Wife’s residence (as the case may be) at the commencement of contact and return the children to the Wife’s residence at the conclusion of contact;
c) For four hours on the husband’s birthday and each of the children’s birthdays (provided they do not fall on school holidays) at times to be agreed between the parties and failing agreement from 3.30pm until 7.30pm;
d) From 6.00pm on the day preceding Father’s Day until 5.00pm on Father’s Day;
e) In the event that Mother’s Day falls during a contact weekend, contact for that weekend shall be suspended from 6.00pm on the day preceding Mother’s Day;
f) From 9.00am on Good Friday until 4.30pm Easter Monday (provided the Easter period does not fall within school holidays) commencing 2006 and each alternate year thereafter;
f) From 9.00am on Good Friday until 9.00am on Easter Sunday in even numbered years and from 9.00am on Easter Sunday to 5.00pm Easter Monday in odd numbered years;
g) For one half of all short school term holiday periods at times to be agreed upon between the parties and failing agreement to be the first half in odd numbered years from 10.00am on the Saturday immediately following the conclusion of the school term to 10.00am on Sunday of the middle weekend and the second half in even numbered years from 10.00am on Sunday in the middle weekend to 5.00pm Sunday immediately prior to the commencement of the next school term, provided that the Husband takes annual leave for no less than one half of the contact period, and the Husband is in substantial attendance during the contact period, the Husband to provide no less that two weeks writing to the wife of his intention to exercise such contact;
g) For one half of all school holiday periods at times to be agreed upon between the parties and failing agreement to be the first half on even numbered years and the second half on odd numbered years provided that the husband takes annual leave for no less than one half of the contact period, the husband to provide not less than two weeks notice in writing to the wife of his intention to exercise such contact;
h) From 6.00pm on Christmas Eve until 2.00pm on Christmas Day in odd numbered years and from 2.00pm until 8.00pm on Christmas Day in even numbered years;
h) From 6.00pm on Christmas Eve until 2.00pm on Christmas Day in even numbered years and from 2.00pm until 8.00pm on Christmas Day in odd numbered years;
There appears to be no evidence before me in relation to any of these matters, much less in relation to any circumstance which has lead to the need for such changes. Certainly it would not be inappropriate to consider the practicality in providing specific times for contact changeovers in order (g), however there is still no evidence in relation to any existing difficulties between the parties on this point, and further, it remains a hypothetical issue as the husband is still living in Sydney. In relation to the other issues, it almost appears that the wife is seeking change for changes sake, particularly where she seeks to amend “odd numbered years” to read “even numbered years” and vice versa. There has been no substantial change to the parties’ circumstances which would warrant making a change to any of these orders.
That for the purpose of paragraph 4 hereof:
a) In the event that the husband proposed to exercise contact outside of the Melbourne metropolitan area, he provide the wife with a contact address and telephone number in writing for that period prior to the commencement of contact;
b) Save as otherwise provided the husband to collect the children at the commencement of contact from the wife’s residence and the wife to collect the children at the conclusion of contact from the husband’s residence;
b) Save as otherwise provided the husband collect the children at the commencement of contact from the McDonald’s Restaurant closest to the wife’s residence and the wife collect the children at the conclusion of contact from the McDonald’s Restaurant closest to the husband’s residence;
c) In the event that the husband engages a third party to supervise contact in his absence, such third party shall be a registered child care professional with recognised first aid qualifications and the husband shall advise the wife of the identity and qualifications of said third party prior to the commencement of contact;
d) The husband to bear the costs relating and incidental to his contact with the children including but not limited to travel costs.
There is no evidence provided by the wife in relation to contact changeover taking place at the parties’ home, as opposed to McDonalds’. Again, in the absence of evidence, the court is hesitant to change an order merely because one party seeks it be done. The wife seeks to add the order in relation to third party care of the children, on the basis that she is concerned for the children’s welfare. Again, she has failed to particularise this concern, neither has she produced any evidence to indicate that the husband has left the children in the care of an unsuitable person. On his own evidence the husband asserts that he has only ever left the children in the care of persons known to the children, including a friend of his who is both a mother of three, and a qualified nurse. Whilst it is appropriate that the husband attempt to spend as much time during contact periods with the boys as possible, unforseen circumstances may arise where he is unable to care for the children for a short period of time. Placing the wife’s proposed restrictions upon him is both onerous and unnecessary. In relation to the husband bearing the costs of contact, the wife does not canvass this issue further in either her submissions or her affidavit.
That in the event the husband is residing interstate or more than 50 kilometres from the wife’s residence, the husband have contact with the children as follows:
That in the event that the husband is residing interstate or more than 100km from the wife’s residence, the husband have contact with the children as follows:
I have already discussed the wife’s proposition in relation to changing the distance from 100km to 50km. There is no need for me to address this issue further.
a) For the first half of the short school term holiday periods commencing in the year 2007, such contact to commence from 7.00pm from the conclusion of school until 6.00pm Sunday of the second weekend and for the second half of the short school term holiday periods commencing in the year 2006 such contact to commence from 7.00pm Saturday in the middle weekend until 6.00pm Sunday immediately prior to the commencement of the next school term;
c) In the March/April and September school holiday period commencing in September 2005 and each said term holiday thereafter from Monday of the first week to the Friday of the second week (being a period of 12 days);
b) One weekend in each school term from 7.00pm Friday to 6.00pm Sunday, provided that the husband gives the wife no less than 7 days notice in writing of his intention to exercise contact;
d) Up to three weekends in each school term from 6.00pm Friday to 6.00pm Sunday, provided that the husband gives the wife not less than 7 days notice in writing of his intention to exercise such contact;
In her affidavit at paragraph 5.3 the wife suggests changing the current orders from three contact weekends per term being taken in Sydney, to one being taken in Sydney, and two in Victoria. It appears she relies on her response in relation to this issue, however, as I have given no regard to her response, I cannot take whatever evidence the response may contain in relation to this issue. These additional two weekends are not documented in the wife’s proposed minute of order. The wife’s main concern in relation to these weekends taking place in Sydney lies in the fact she considers the travel to be too much for the children, and that they are exhausted at the end of each trip. With respect to the wife, she would have been aware of the travelling issues at the time these orders were made, and it seems to me that the only change is circumstances is that the children are now slightly older, and as a consequence may well be better able to handle the travelling. The wife’s concerns are not without foundation, however such a situation is often the consequence for children when their parents chose to live in separate states.
c) From 7.00pm on Friday until 6.00pm Monday in March of each year on the weekend when the Monday is the Labour Day holiday in the State of Victoria;
d) From 7.00pm on Friday until 6.00pm Monday in June of each year on the weekend when the Monday is the Queen’s Birthday Holiday in the State of Victoria;
These two orders are additional orders the wife seeks. Although she does not provide specific evidence in relation to these two weekends, it is plain that including a public holiday in the orders would allow the children to have an extra day with the husband, and would also allow them an extra day before they had to travel again back home on an aeroplane. For his part the husband proposes that an order be included (order 8(h) of the orders he seeks) allowing contact which takes place in conjunction with a public holiday or pupil free day to be extended to include that day. This seems to em to be a sensible approach, and whilst again there has been no demonstrated change in circumstance, it appears to be an issue upon which both parties agree.
e) For one half of the long summer school vacation period by agreement and failing agreement as follows;
(i) For the first half commencing 10.00am on 23 December 2007 until 6.00pm 10 January and in alternate years thereafter;
(ii) For the second half commencing 10.00am 11 January 2007 until 6.00pm 26 January and in alternate years thereafter, if however the school year commences prior to 26 January in each year the contact shall end 6.00pm 24 hours before the commencement of school.
(f) One half of the long summer vacation period, being the first half commencing on the Sunday after the conclusion of the school year in 2005/2006 and each alternate year thereafter and the second half in 2006/2007 and each alternate;
The new orders proposed by the wife in relation to Christmas school holiday contact very much reflect the orders I made by consent on
24 October 2005. They provide a structure for contact which the previous orders were lacking, and allow the parties’ to each spend alternate Christmases with the children. This also accords with the amendment to order 8(f) in the husband’s proposed final orders. I am satisfied that orders should be made to reflect this.
For the purpose of the contact specified in Paragraph 6 hereof:
c) In the event that the Husband engages a third party to care for the children in his absence, such third party shall be a registered child care professional with recognised first aid qualifications and the Husband shall advise the wife of the identity and qualifications of said third party prior to the commencement of contact;
I have already addressed this issue in relation to third party supervision. I reiterate my findings as above.
The husband provide not less than 2 weeks notice in writing of his intention to exercise such contact;
This current order has been excluded from the orders proposed by the wife. It is unclear to me why this would be the case, and in the absence of any evidence in relation to this issue, or to any change which has brought about the need to remove this order, I consider that this may have been an oversight in the drafting of the new orders. Even if this is not the case, it is in the best interests of all of the parties that this structure remains in place.
f) The husband be solely responsible for making all travel bookings for the purposes of contact, however, the husband shall consult with the wife prior to making travel bookings to ensure that such arrangements shall not conflict with the children’s extra curricular activities and prior commitments;
The wife seeks that this order be amended to provide that the husband consult the wife in relation to the travel bookings, in order to avoid conflict with other commitments the children may have. The wife provides no evidence in her submissions or her affidavit in relation to this issue, or any problems the parties have had which would require the inclusion of such an order. Certainly the ideal would be that the husband would do this in any event, however, in the absence of any evidence or discussion in relation to this issue, the amendment to the order will not be made.
g) The husband shall bear the costs relating and incidental to his contact with the children but not limited to travel costs;
The wife seeks that an order in relation to the husband bearing costs in relation to travel be included in the new orders. There is no evidence in relation to this issue before me. Specifically, there is no evidence that the husband is not currently meeting the costs of contact.
i) For the purpose of sub-paragraph 7(h) the wife shall provide to the husband a medical certificate as evidence of such illness or written notice of the circumstances of the children’s illness that prevented the scheduled contact taking place.
This is another additional order the wife seeks, and again, there is no evidence before the court in relation to it. The husband views this as a way for the wife to avoid sending the children for contact. Whilst this may not be an accurate reflection of the wife’s intent, in the absence of any evidence in relation to the issue, or a change of circumstance from which the need for such a change has arisen, I consider that it is appropriate to leave the orders unchanged. Under the existing orders the wife bears the onus of paying for contact cancelled due to medical emergency, and in my opinion, this orders is sufficient to ensure that contact does in fact take place unless there is a real emergency. It would be to the wife’s detriment were contact not to take place, and it seems unnecessary for her to have to provide the husband with a medical certificate as proof of illness. Accordingly, the amendment the husband seeks to order 9(h) is also refused.
That the parties each provide to the other when practicable no less than 48 hours notice of any variation to or cancellation of contact arrangements;
This order is also missing from the wife’s new proposed orders. It is evident that these parties require structure in order to ensure that contact takes place with as little difficulty as possible, and I think that removing this order would be of benefit to neither party. Again, in the absence of evidence to the contrary, this order will remain.
That the husband have telephone contact with the children as follows:
d) In the event that the children’s extra curricular activities, school events or family commitments result in the children or either one of them being unavailable for telephone contact pursuant to Sub-paragraph 8(a) then the wife shall facilitate the children telephoning the husband within 48 hours of the scheduled telephone contact and the wife shall provide the husband with written notice of the circumstances that prevented scheduled telephone contact taking place as soon as practicable.
This is an additional order sought by the wife. It is the husband’s evidence that telephone contact is working well, and without evidence on this issue from the wife, I accept his assertion. Certainly it is reasonable to expect that there may be occasions when the boys are involved in other activities and unable to be home, however, as the husband correctly asserts, these orders do not limit contact to a home telephone, and it may be appropriate for the children to be reached on a mobile phone.
That during all periods of holiday contact between the husband and the children, the wife have telephone contact with the children:
a) On every second week day between 7.00pm and 8.00pm commencing the day after the commencement of the husband’s contact unless otherwise agreed between the parties;
a) on Tuesday, Thursday and Sunday of every week between 7.00pm and 8.00pm unless otherwise agreed between the parties in writing;
As the order currently stands, the wife has contact with the children almost every second day in any event. There is no evidence from the wife as to why the current arrangement should be changed.
b) For the purpose of Sub-paragraph 9(a), the wife shall telephone the children unless otherwise agreed between the parties;
b) For the purpose if sub-paragraph 11(a), the wife shall telephone the children on Tuesday and Sunday and the husband shall facilitate the children telephoning on Thursday;
Under the current arrangement, the wife facilitates the telephone calls to the children on most nights. Again, it is the husband’s evidence that telephone contact is working well, and there is nothing before me to suggest that this change is necessary.
d) In the event that the children’s extra curricular activities, school events or family commitments result in the children or either one of them being unavailable for telephone contact pursuant to Sub-paragraph 9(a) then the husband shall facilitate the children telephoning the wife within 48 hours of the scheduled telephone contact and the husband shall provide the wife with written notice of the circumstances that prevented scheduled telephone contact taking place as soon as practicable.
As I have mentioned, it is the husbands evidence that the current telephone contact arrangement is working well. The husband’s opposition to this order being made should allay any of the wife’s fears that the children will not be made available for contact by the husband at the appropriate times.
That all communication between the parties shall be by email communication except in the event of an emergency and such communication shall satisfy the requirement of written notice save as otherwise provided in these orders;
The parties shall ensure that each other is provided with a current email address at all times.
These are two additional orders sought by the wife. It is evident from these proceedings that the parties’ are unable to communicate verbally with one another. This is unfortunate, as it is the children who will invariably suffer from their inability to discuss matters in a civil manner. Whilst the mother has not provided a great deal of evidence in relation to this matter, she does comment in paragraph 5.17 of her submissions that the husband has in the past caused letters to be delivered to her personally. Annexure C of the husbands March affidavit is an email from the wife to the husband following the delivery of a letter from the husband. Clearly the wife is distressed by this occurring. In annexure H of his own March affidavit, the husband expresses to the mother that communication between the parties should be by way of email, letters and sms until communication improves. He is optimistic in his submissions at paragraph 5.4 that the parties will be able to communicate verbally in the long run. Sadly, I do not concur with this submission. As both parties essentially agree that communication should be in written form, I will make an order restricting this to email and sms communication. Owing to this, an order in relation to the provision of current email addresses is appropriate.
That the parties be jointly responsible for the costs of the children’s school fees (whether private or otherwise), sporting activities, extra curricula (sic) activities, school camps and other expenses of this nature relating to the children and each party shall notify the other in writing of the quantum of such costs and reimburse the other as soon as practicable.
There is not evidence by reason of which I could make this order. In the first instance, this is an issue that should be pursued via a change of assessment application with the Child Support Agency. As there is no evidence the wife has made any such application, or completed Part 6B procedures, her child support application will be struck out for want of jurisdiction.
That each party ensure that no other party is directly present at contact changeovers.
The wife seeks the removal of this order. Again, she has given no evidence in relation to this issue. The husband submits that contact changeover works well because there is no third party present, and in the absence of anything further from the wife, this order will remain.
The wife also sought an order reducing telephone contact between the children and their paternal grandparents in Switzerland, from once a week to once a month. Again, the wife does not canvass this issue, and accordingly, this order will not be changed.
Aside from the issue of costs, the remaining issue is that of the husband’s proposal to amend order 8(d) of the 2004 to enable him to choose the weekends in which contact takes place. In both paragraph 4 of his submissions he indicates that the 2004 orders are mostly working very well. In paragraph 4.2 of the same document he further submits that since 2004 he has been nominating the weekends for contact. He supports his request for change by reference to an incident in November 2004, documented in paragraphs 55-57 of his March affidavit, where an agreement had been reached as to contact, and the wife later sent an email seeming to be frustrated that the weekend was not suitable to everyone. With respect to the husband, allowing him to make the decision in relation to contact weekends unilaterally would only benefit himself. Although there have been some difficulties, contact on the whole has been happening, with the husband instigating the contact in any event. There is nothing before me to indicate that such an addition to the order is warranted, or that there has been the requisite change in circumstance that would warrant the change in order being made.
All in all there is no evidence before me from either party that there has been a substantial change in circumstance that would warrant a revisiting of the contact arrangements, and an overhaul of the orders.
The current orders have been in place for two years, and for all intents and purposes, and in spite of the continuing conflict between the two parties, contact seems to have been occurring, and has been occurring well. Over the past two years the boys would have grown accustomed to the arrangements, and the travel necessary to ensure they continue to see their father. Certainly there will continue to be considerable time and effort involved on behalf of all of the parties, and as they grow older and become more involved with friends and other commitments, maintaining contact as it currently stands will see the boys themselves possibly making the biggest sacrifices. Ultimately it is the parents themselves who have made these arrangements, and they and the boys must now live by them, unless they are able to find a way to communicate and agree with one another.
Costs
Both parties are seeking costs in relation to their respective applications in this matter. Section 117 of the Family Law Act 1975 provides that each party to proceedings shall pay his or her own costs. This is subject to sub-s.(2), which provides that if the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to sub-s.(2)(A) make an order for costs.
Neither party have addressed the issue of costs in their submissions, perhaps relying on a wholly unsuccessful outcome on the others part to see them awarded their costs in the proceedings. It seems to me that, given the outcome, there is nothing exceptional in the circumstances of this case that would lead me to making a costs order against either party.
For these reasons I make the orders identified at the beginning of this judgment.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: D. Neligan
Date: 7 June 2006
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