B and J - [2007] FMCAfam 345

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & J

[2007] FMCAfam 345

FAMILY LAW – Parenting orders – interim hearing – lack of evidence.

FAMILY LAW – Change of venue.

Family Law Act 1975, s.65DAA
Federal Magistrates Court Rules 2001, r.8.01

Applicant:

Respondent:

File number:

PAC768 of 2007

Judgment of:

Halligan FM

Hearing date:

16 March 2007

Date of last submission:

16 March 2007

Delivered at:

Parramatta

Delivered on:

16 March 2007

REPRESENTATION

Solicitors for the Applicant:

Father In Person

Counsel for the Respondent:

Ms Haughton

Solicitors for the Respondent:

Porters Solicitors

ORDERS

Pending further order, the parents shall have equal shared parental responsibility for the children NI, born 15 January 1997, NE, born 21 February 1998 and PR and PY, twins, born on 31 December 2002.
Pending further order, the children shall live with the mother.
Pending further order, the children shall spend time with the father during school terms each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday commencing 23 March 2007 and for the first half of all school holidays other than the Christmas school holidays, commencing at 9.00 am on the day after the end of school term.
Pending further order the father shall spend time with the children for one half of the Christmas school holidays as agreed or failing agreement for the first half in holidays commencing in 2007 and each alternate year thereafter and the second half in holidays commencing in 2008 and each alternate year thereafter.
Pending further order if Father's Day falls on a weekend the children are not to spend time with the father pursuant to order three, the father shall spend time with the children on the Father's Day weekend in lieu of the following weekend.
Pending further order, if Mother's Day falls on a weekend the children are to spend time with the father pursuant to order three, the father shall spend time with the children on the following weekend in lieu of the Mother's Day weekend.
Pending further order, the father shall collect the children from and return the children to the mother's residence at the commencement and conclusion of his time with the children.
Pending further order, the father may communicate with the children by phone to the mother's landline number between 3.30 pm and

5.30 pm on any day; the mother to keep the father informed of her landline phone number at all times.
The venue of these proceedings is changed to Canberra and the proceedings are transferred to the Canberra Registry.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC768 of 2007

Applicant

And

Respondent

REASONS FOR JUDGMENT

This is the hearing of interim parenting applications brought by the parents of four children, NI, born 15 January 1997, NE born

21 February 1998 and PR and PY twins, born on 31 December 2002.
The evidence of the parties if fairly scant. There is no evidence as to when they commenced cohabitation, when they married or when they separated. Judging from things that have fallen from the bar table it would seem that the parties have been divorced and that the divorce took effect probably about 12 months ago but there is no direct evidence about this.
In the father's case there is no clear evidence in relation to the time that he has spent with the children, however long a period it has been since the parties separated. He certainly does assert that he has spent time with them, but as I say, he does not spell out how that has in fact occurred. He suggests that at some stage after separation, the mother and the children moved to Canberra. There is no evidence as to when this occurred or from where the move took place.
The father suggests an agreement between him and the mother that he see the children every second weekend and half of school holidays. There is no evidence as to when or how this agreement was entered into. There is no evidence from him as to whether it was carried into effect at any period subsequently. He asserts that he has been a good father to the children. There is no evidence as to his involvement in the care or upbringing of the children really in any sense at all since the children were born.
In saying that, I am not doubting that he is or wishes to be a good father to the children. However, and bearing in mind the father is self represented although he says that he has been taking advice from a solicitor, the fact is that the evidence he proffers, as I have already indicated, is scant in the extreme.
The mother's evidence is a little more expansive but again leaves out fairly fundamental matters. She does not disclose where she lives. She does not disclose the domestic arrangements she has in place for the care of the children. Certainly, on the applications before the Court, residence is not an issue. Each party seeks an interim order that the children live with the mother. The issue is how much time the children are to spend with the father and where changeovers between the parents for that to occur is to happen.
Nonetheless, bearing in mind the current requirements of the Family Law Act 1975, the affidavit should include much more than is in fact provided in it because, as there is no issue that there should be an equal shared parental responsibility order, the Court must consider whether or not it is appropriate to make an equal time order, and if not, must consider whether it should make a substantial and significant time order, before it considers the proposals of either party (s.65DAA). Neither of the parties’ proposals entails substantial and significant time much less equal time.
The mother suggests that she cannot remember the time the father spent with the children before September 2005. She says the father was overseas from September to December 2005. I understand that the father agrees that he was overseas for a period at about this time but as I understand it he disputes the duration. The mother says the father had the children from 26 December 2005 to 15 January 2006 and again from 26 December 2006 to 16 January 2007. In addition, she says that in between those two block periods the father had the children on the weekends of 17 March 2006, 5 and 19 May 2006 and 9 June 2006. She asserts that he was overseas from 21 July to 26 November 2006. Again, as I understand it, the father does not dispute that he was overseas, returning in November 2006, but I believe he may dispute the duration of that absence.
The father says that he no longer has employment. The circumstances in which he lost his employment are not disclosed. He says that he was assessed to pay child support and as I understand it, implies that he is paying child support, at this stage at the minimum level. The mother asserts that she is not receiving child support from the father.
The mother suggests, as I understand it, that she is in receipt of supporting parent benefit. She says that she has had to sell her motor vehicle to pay for surgery for one of the children's tonsil operation which she says she has been advised will cost around $3000. She gives no evidence as to how much she received upon the sale of the vehicle.
As I understand it, the father seeks to suggest from the bar table that he believes the mother has remarried. However, the mother discloses, as I say, nothing in relation to her domestic arrangements at all in her affidavit evidence beyond asserting that she is in receipt of a single parent's pension. Of course a person is not entitled to receive such a pension if in fact they are cohabiting with another person.
So far as the changeover venue is concerned, the mother she seeks it be in Canberra and the father seeks it be in Sutton Forest. Having sold her car and, she says, being unable to afford a bus, train or plane, the mother says changeovers should occur in Canberra. The father asserted from the bar table that he too did not have a car but was borrowing one. This is not part of the evidence in his affidavit.
Otherwise, as I understand it, the mother seeks to limit the father's alternate weekends, which both the parties agree the children should spend with the father, to start at 1 pm on Saturday rather than 5 pm on Friday that the father seeks. As I understand it, she suggests that the children are currently playing softball and intend to play soccer or netball through the winter season.
I have no evidence as to whether the children have played these sports in the past. I have no evidence whether the mother has discussed the children playing these sports in the past or currently with the father and if so what his response was. I therefore have no means of determining whether the children's involvement in these suggested activities has been something that is of long standing and with joint parental agreement or whether it is something of relatively recent invention without any involvement of the father in the decision at all.
As I have already intimated, bearing in mind that each of the parties agree there should be an equal shared parental responsibility order, the Court is required to consider making first an equal time order. The Court must consider whether such an order would be practicable and whether it would be in the children's best interests.
At this stage it would seem unlikely that such a proposal would be practicable because of the geographic separation of the parents. The oldest two children are certainly of school age and it is simply impractical for them to be spending equal amounts of time in two separate schools under two separate school systems, one in the ACT and the other in New South Wales. I am therefore satisfied that it is not appropriate to make an equal time order.
So far as substantial and significant time is concerned, so far as it would provide for the children to spend time with the father mid week other than during school holidays and spend time with the father on occasions that are of significance to him and on occasions that are of significance to the children, again, the geographic separation of the parties would seem to render that type of an arrangement, on the present evidence, impractical and for that reason I do not make a substantial and significant time order.
Which then leaves the options that the parties present, with the two significant differences being whether the alternate weekends commence, as the father seeks at 5 pm Friday, or as the mother seeks, at 1 pm Saturday, and where the changeovers are to occur.
In relation to the duration of the alternate weekends, there is no evidence to indicate whether the father concurred in these children participating in the activities the mother refers to. Bearing in mind the prima facie legislative intent, clearly evinced by the requirement in cases such as this one for the Court to consider equal time or substantial and significant time, that the time that the children spend with each parent should be maximised, I am satisfied that the orders should be that it start at 5 pm on Friday and not 1 pm on Saturday.
So far as the changeover is concerned; the mother certainly asserts she has sold her car. The evidence is unclear and at best begs the question as to whether the mother in fact has any alternate transport open to her. She certainly has not asserted that it is not possible for her to borrow a motor vehicle to take the children to a changeover point outside Canberra. I also note that the mother, in relation to telephone time, objects to the father ringing her on her landline and in fact proposes that the father be required, if he wishes to communicate with the children by phone, to provide the children with a mobile phone for that purpose because she alleges that he verbally abuses her. She nonetheless, in relation to changeovers, proposes that they all occur at her home.
I must confess it seems something of a contradiction that on the one hand the mother does not want the father ringing her landline, but on the other, she wants him attending her home twice every alternate weekend. Why there would be any less risk of arguments on the father attending her home than ringing her home escapes me at the moment.
But nonetheless, the problem the Court has is that on the evidence at the moment it is entirely unclear whether the mother in fact is able to convey these children to Sutton Forest. If the Court makes an order requiring the mother to do so and it ultimately transpires that she does not have any access to another motor vehicle whereby she may transport the children, it simply means that the father will not see the children at all and the mother will have a perfect defence to any suggestion that she has contravened the orders.
On the other hand, as I understand it, the father suggests that it would impose financial hardship on him to require him to undertake all of the travel. And he also adverts, in his submissions, to the fact, as he asserts it, that it was the mother who chose to move, therefore rhetorically asking why it is he who should bear the responsibility of all the travel necessitated as a result of the mother's move.
But ultimately the question is whether or not this spending time with the father is in the children's best interests and if it is, what order is most likely to have it occur? It clearly is appropriate that the children see their father. Bearing in mind the doubts I had based upon the evidence as to whether the children would in fact spend any time on alternate weekends with the father if I made the order the father seeks, I in fact propose to make the order in relation to pick up and return as the mother seeks.
Otherwise, I will make an order in relation to half of school holiday time. I also intend to make an order for phone communication between 3.30 pm and 5.00 pm on any day via a landline telephone number. I do not intend to make the orders that the mother seeks for the reasons that I have already alluded to. That is; that on the one hand she objects to the father being verbally abusive ringing her to speak to the children yet requires that he attend her home twice every fortnight to pick up and return the children. In those circumstances it can be via landline and she will need to keep him informed of a landline number at all times.
Again there is an issue raised in the mother's response, filed yesterday, as to the venue for the further conduct of these proceedings. The mother seeks that the venue for the proceedings be changed to Canberra and proceedings be transferred to that registry. The father received the mother's documents only this morning. However, bearing in mind I am dealing with the matter at the end of a fairly long day in a duty list, the father at the bar table tells me he has not bothered to read the affidavit that he has had from the mother in his possession all day long.
The mother's position is that the children, at least the elder children, are now at school. She says that she does not have the money to pay for someone to collect the children from school or to provide for after school child care if the proceedings were to continue at Parramatta. She says she does not have the money for the youngest two children to be placed in child care during the day. Otherwise, the Court needs to have regard to the fact that prima facie the applicant may choose venue. That is simply no more and no less than a casting of the onus upon the respondent who seeks to change venue to show reasons why that should occur.
In determining whether or not that should occur, the Court needs to take into account as relevant the Court's ability to effectively discharge its business both here and in Canberra, any potential additional delays that may be entailed in the matter by being transferred to Canberra, the relative expense to the parties if the matter stays at Parramatta or is transferred to Canberra, other matters of convenience to the parties if the matter stays at Parramatta or is transferred to Canberra and any other relevant matter (see r.8.01, Federal Magistrates Court Rules 2001).
There is no evidence before me in relation to the relative delays between this Court's Parramatta and Canberra registries. I therefore cannot proceed upon the basis that there would be any greater delay if I transferred the matter to Canberra. The mother certainly asserts that the matter continuing at Parramatta would cause her additional expense and inconvenience, both in attempting to make child care arrangements for the children and in her being away from the children.
The father, from the bar table, as I understand it, suggests that he too would be faced with additional expense of the travel to Canberra if the matter is transferred there. He also suggested that he was taking advice from a lawyer in Sydney. That lawyer is not on the record and I sincerely doubt that that lawyer provided any advice to the father at all in relation to the evidence he might need to put in his affidavit in support of his application. But if the matter is transferred to Canberra, bearing in mind this lawyer is not on the record, that would not in any way prejudice the husband obtaining the advice of that lawyer. He did however further suggest that he may now have to get a lawyer, and to that extent I proceed upon the basis that subject to the father's entitlement to Legal Aid, and I note of course he says he is not in employment and has not been able to obtain employment, then certainly there may be some additional cost to him in any lawyer either travelling to Canberra or more likely instructing a local agent for him when the matter is before the Court in that place.
At that point, as far as I can see, the likely additional costs to the parties are similar. The financial prejudice of the costs of attending on the proceedings and instructing lawyers to conduct the proceedings would be similar for the mother if the matter remains here as it would be for the father if the matter is transferred to Canberra. But the mother has the additional financial impost upon her, if the matter remains here, in having to make child care arrangements in relation to the children. She also has the additional inconvenience for herself and the children of being unavailable to the children when the matter is at Court if it remains in Parramatta for much longer periods than if the matter was in Canberra.
Taking these matters into account, I am satisfied that the venue of the proceedings should be changed to Canberra and I will so order.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate: Deanne Bush

Date: 29 May 2007