Bane and Abbott
[2011] FMCAfam 664
•8 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BANE & ABBOTT | [2011] FMCAfam 664 |
| FAMILY LAW – Children – parenting orders – interim orders – consent orders – whether self-enforcing contravention orders. |
| Family Law Act 1975, s.60CA |
| Applicant: | MR BANE |
| Respondent: | MS ABBOTT |
| File Number: | SYC 7613 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 June 2011 |
| Date of Last Submission: | 8 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Corish |
| Solicitors for the Applicant: | Staunton & Thompson |
| Counsel for the Respondent: | Mrs Bridger |
| Solicitors for the Respondent: | Ken Heasman Solicitor |
ORDERS
BY CONSENT UNTIL FURTHER ORDER orders in accordance with paragraphs 1 through to 6 as amended and 8 through to 17 as amended of Minutes of Interim Parenting Orders
UNTIL FURTHER ORDER if the child [X] born [in] 2005 is unable to spend time with the Father for a weekend due to illness or injury, then the Father shall have a make up weekend on the following weekend.
The Application is adjourned to Monday 5 December 2011 at 12:00pm for further mention.
IT IS NOTED that publication of this judgment under the pseudonym Bane & Abbott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7613 of 2010
| MR BANE |
Applicant
And
| MS ABBOTT |
Respondent
REASONS FOR JUDGMENT
Before the Court this morning are minutes of proposed interim parenting orders relating to the parties’ little girl [X], who was born [in] 2005. It is proposed that these orders should remain in force for a period of approximately six months, and the orders to which the parties have agreed appear to me to be workable and in [X]’s best interests.
There is one order which is proposed by the Father that is not agreed to by the Mother, and I have heard submissions as to why this order should or should not be made.
The wording of the proposed order is:
If the child is unable to spend time with the Father for a weekend due to her sickness or other reason which is not caused by the Father or is the Father’s fault, such as the unavailability of the Father, then the Father shall have a make up weekend on the following weekend.
Whilst I can understand the reasoning behind this proposed order, I am not satisfied that it is workable in the circumstances or, more importantly, that it is in this child’s best interests.
I would stress that the paramount consideration when the Court is making parenting orders must be the best interests of the child. That is specifically provided by section 60CA of the Family Law Act. It is understandable that if the Father does not get to see [X] on the agreed weekend, that it would cause him a degree of distress and unhappiness if he were not to see his daughter for a month. [X] may have similar views.
However, I have serious concerns about the viability of the proposed order, which appears to include self-enforcing contravention proceedings. I am also concerned about the wording of an order which refers to the fault or otherwise of a party. In my view, it is not helpful to anticipate fault on the part of either parent. The Court would expect both parents to be mindful of their responsibilities as parents and not to be either seeking to find fault with the other or excusing themselves from fault.
I am informed by Mrs Bridger of counsel, who appears for the Mother, that her client would be willing to consent to an order which says words to the effect of, “If the child is unable to spend time with the Father for a weekend due to her sickness” and I presume or other reason, “then the Father shall have a make up weekend on the following weekend.” That would seem to me to be self-evident and a matter that the Court would regard favourably.
However, Mr Corish has raised for the Father concern about the Mother not making the child available on a weekend when she was supposed to be with the Father if, say, for instance, she wanted to go to a wedding or some other occasion. The fact is that the Court is making parenting orders. The Court starts from the point of view that these are orders made by the Court whether they are orders by consent or orders imposed after a defended hearing. And therefore the starting point is that orders are to be complied with.
Clearly, if the child suffers illness or, for that matter, injury, then it may not be appropriate for her to spend the weekend with the Father. But if the Mother has some other commitment on a weekend when [X] is due to be with her father under these orders, the first consideration has to be that under these orders, [X] is supposed to be with her father. If there is a need to change that arrangement, then the responsibility falls squarely on the Mother to make those arrangements or those changed arrangements with the Father. If the Mother unilaterally cancels the Father’s time with the child due to some other concern of her own, then it would seem prima facie that there is a contravention of the orders.
If there is to be some other reason why [X] is unable to spend time with her father at a time when the orders say that she will, then that is a matter that should be considered on a case-by-case basis. But if one or other party chooses unilaterally to vary the orders, then, as I say, that is a contravention of the orders, and the Court would look at as to whether a contravention had in fact been made out, and if it had, whether there was a reasonable excuse.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 5 July 2011
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