BWR and AMV
[2004] FMCAfam 671
•24 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BWR & AMV | [2004] FMCAfam 671 |
| FAMILY LAW – Children – contact – application to vary consent orders – whether test in Rice & Asplund (1978) 6 Fam L 570; (1979) FLC 90-725 has been met – shared parenting – whether a contact order should be made in favour of the paternal grandparents who normally live in New Zealand – name of child – whether child’s surname should be changed – telephone contact – whether installation of a webcam necessary or appropriate – child aged 5 years. |
Family Law Act 1975 (Cth), ss.60B; 61B; 61C; 65C; 61D; 65D; 65E; 68F(2)
Family Law Reform Act 1995 (Cth)
Child Support (Assessment) Act 1989 (Cth), ss.116; 117
B & A [2004] FMCA fam 473
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725
H & K [2004] FMCAfam 140
Hayman & Hayman (1976) FLC 90-140
Freeman v Freeman (1987) FLC 91-857
Bennett v Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191
King and Finneran (2001) FLC 93-079
D & Y (1995) 18 Fam 662; FLC 92-581
S & C [2003] FMCAfam 417
Chapman and Palmer (1978) 4 Fam LR 462; FLC 90-510
Beach and Stemmler (1979) FLC 90-692
Mahony and McKenzie (1993) FLC 92-408
Flanagan & Handcock (2001) FLC 93-074
Stevens v Lee (1991) FLC 92-201
Bright and Bright v Bright and Mackley (1995) FLC 92-570
In the Marriage of Talbot (1993) 16 Fam LR 910; FLC 92-397
In the Marriage of Harrison and Woollard (1995) 18 Fam LR 788; FLC 92-598
B and B Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755
In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324; FLC 92-778
T v N [2001] FMCAfam 222; (2004) 31 Fam LR 281
| Applicant: | W R B |
| Respondent: | M V A |
| File No: | PAM 3267 of 2004 |
| Delivered on: | 24 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 29 September and 8 October 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant: | Appeared on his own behalf |
| Counsel for the Respondent: | Mr Thistleton (direct brief) |
ORDERS
The applicant and the respondent shall each have sole responsibility for the management of the day-to-day issues surrounding the care, welfare and development of the child B A born 9 April 1999 during those periods that B is in their respective care.
The applicant is to be recorded on the birth certificate of the child B A born 9 April 1999, as the father. For the purposes of implementation of this order the applicant must provide the following documents to the respondent:
(a)the signed application to register him as the father of the child B; and
(b)a cheque in favour of the Registrar of Births Deaths and Marriages for the prescribed fee of $85.00 and postage of $5.00 (total $90.00) within 28 days from the date of these orders.
The respondent must lodge the documentation referred to in Order 2 for registration within 28 days from receipt of the applicant’s cheque for fees.
Order 2.1 made by consent on 25 September 2003 is varied so as to read:
From 3.00 p.m. Friday 3 October 2003 until 8.30 a.m. Monday
6 October 2003, and in the event that Monday is a public holiday until 8.30 a.m. on the following day being Tuesday and each alternate weekend thereafter from 1/1/04 other than during school holidays and alternate contact weekends shall recommence on the first weekend of the school term in those years when the father has exercised contact in the first half of the school holiday period and the second weekend in those years when the father has exercised contact in the second half of the school holiday period.Order 2.4.1 made on 25 September 2003 is discharged.
The orders made on 25 September 2003 are varied by adding this order:
For the purposes of these Orders;
(a)School holidays are deemed to commence on the Saturday immediately school term concludes;
(b)School holidays are deemed to conclude on the day immediately before the first day the child B is required to attend school at the commencement of each school term;
(c)A day designated by the school attended by the child as a “pupil free day” is not a day when the child is required to attend school;
(d)Contact for the first half of the Spring, Autumn and Winter school holiday periods will commence at 9.00 a.m. on the Saturday immediately after school term concludes and will conclude at 5.00 p.m. on the middle Saturday of the said school holiday period; and
(e)Contact for the second half of the Spring, Autumn and Winter school holiday periods will commence at 5.00 p.m. on the middle Saturday of the school holiday period and will conclude at
5.00 p.m. on the day immediately before the child is required to attend school at the commencement of the next school term.
The child support assessment for the child B A born
9 April 1999 payable by the father is departed from so as to provide that the father is to pay one half of the school fees required by the C C G School for the tuition of the said child for the school year commencing 2005 and each year thereafter until the child concludes his secondary education in addition to the amount provided by the administrative assessment of child support otherwise due and payable.All documents produced on subpoena and all exhibits are to be returned after the expiration of one month from the date of these Orders.
All other applications save as to costs are dismissed and this proceeding is removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAM 3267 of 2004
| W R B |
Applicant
And
| M V A |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the father of a boy named B to vary some orders that were made by consent in the Family Court of Australia at Sydney on 25th September 2003. The orders sought by the father concern the following issues:
a)day to day care, welfare and development of the child;
b)placing the father’s name on the child’s particulars of birth at the NSW Registry of Births, Deaths and Marriages;
c)varying the contact orders so that the father’s parents (the child’s paternal grandparents) may have contact with the child when visiting Australia;
d)defining the times of contact;
e)varying the order for telephone contact to include E-mail or web cam contact ; and
f)changing the child’s surname of “A” to “B”.
The mother, who is the Respondent to the application, agrees with the proposal about day to day care, welfare and development of the child. She also agrees to the proposal about placing the father’s name on the particulars of the child’s birth, subject to certain changes as to the form of the order. She does not agree to the other changes that the father seeks.
Background
The parties commenced living together in May of 1997. The father was born on 6th August 1953, so he is 51 years of age, although he looks younger. The mother was born on 15th July 1964. She has a child of an earlier relationship, a girl called N D, who was born on
19th March 1993.
The mother and father have one child, B, who was born on
9th April 1999. The parents separated on 2nd October 2001 and have lived apart since then. B lives with his mother.
The mother commenced proceedings under the Family Law Act 1975 in the Family Court at Newcastle on 12th October 2001. The proceedings were transferred to the Family Court at Sydney on
26th August 2002. On 19th September 2003, the parties signed Terms of Settlement resolving the matters then in issue between them. Consent Orders in accordance with those Terms issued out of the Family Court on 25th September 2003, signed by a Judicial Registrar.
Those orders provided that the child would live with the mother and the father would have contact. The orders set out a detailed regime of contact that includes alternate weekends, school holidays, other contact as agreed, Christmas, the child’s birthday, Father’s Day, Mother’s Day, telephone contact and various contact arrangements, including provision for the father to take the child out of Australia. It is relevant that the father was born in New Zealand and his parents live in that country. The orders also include provision the child’s school to record the names of both parents, consultation between the parents about educational issues, medical and dental issues concerning the child.
Order 10 that was agreed between the parties refers to the child’s surname. The order is in these terms:
Each party shall ensure that the child B A be exclusively known as, use the name of, and be referred to as B
A in all facets of his life including registration with all government authorities or instrumentalities, medical practitioners, pre-schools, schools, sporting or cultural organisations, or any other body or organisation that a maintains a record of children’s names as and from the date of these orders.
I note that the parties signed the terms of settlement. The mother was represented by a barrister, the father was represented by a solicitor.
This notation appears on the final page of the Terms of Settlement signed by the parties:
1. The parties intend that these are final orders in respect of the arrangements for residence, contact and specific issues in respect of the child until the child turns eighteen (18) years of age.
The father filed his application to vary the orders at this Court on
28th June 2004. In his application, he originally sought 20 orders. Orders 19 and 20 formed the subject of an interim hearing that was argued before me on 23rd August 2004. I gave a decision in that matter on 27th August 2004. The decision is not reported, but the Court’s citation for it is [2004] FMCAfam 473.
The father has now produced a minute of Amended Final Orders Sought by Applicant Father. I have briefly summarised the orders sought by the father in that document in paragraph 1 of these Reasons.
The mother filed an Amended Response on 23rd September 2004. In that Amended Response she asked for the father’s amended application filed on 17th September 2004 to be dismissed. She also asks for an order for costs.
Documents relied on by the parties
The father relies on the following documents, which I have read:
a)His application filed on 28th June 2004;
b)Amended Final Orders Sought by Applicant Father;
c)His affidavit filed on 20th September 2004;
d)Affidavit of F B filed on 17th September 2004;
e)Affidavit of C Z filed on 17th September 2004;
f)Affidavit of S C filed on 17th September 2004; and
g)Affidavit of S F filed on 17th September 2004.
The mother relies on the following documents, which I have read:
a)Her Amended Response filed 23rd September 2004;
b)Her affidavit filed on 23rd September 2004; and
c)Her affidavit filed on 26th July 2004.
The applicant father was the only person to give oral evidence as part of his case. His father, F N L B, was present on
8th October but was not required for cross-examination
The mother gave oral evidence. In evidence in chief, the mother complained that the father threatened her with court cases. She also said that there is an impasse with the father over the child’s proposed attendance at the C C G School. The father, she said, would not give her an answer as to whether he would commit himself to assisting with the child’s school fees.
In cross-examination by the father, who appeared for himself, the mother said that she had no difficulty interpreting the consent orders made in the Family Court of Australia.
The father asked her about changing the child’s name from ‘A’ but she was opposed to that. She said that she wanted his name to be ‘A’, after her family. Her parents use that name. She would not agree to a hyphenated surname. She said “No, it would be too long and it would be weird”.
The mother did agree that it was in the child’s best interests to have his father’s name on his birth certificate. She told the father that this was the first time he had asked her to have this done. She said, “It didn’t come up in the last proceedings.”
Submissions
Counsel for the mother, Mr Thistleton, submitted that the issues between the parents had been comprehensively dealt with in the Family Court in September 2003. He referred me to the well-known decision of Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725. This decision lays down the principle that before a court reopens parenting orders, it must be satisfied that there has been such a change in circumstances that reopening the question is justified.
Mr Thistleton submitted that Order 1A sought by the father, relating to joint responsibility for the child’s long term care, welfare and development, was unnecessary, due to the operation of. S60B of the Family Law Act, and the fact that the parties had considered the relevant matters when they had agreed to Orders 5 to 8 in the current orders. He also referred me to the decision of Chief Federal Magistrate Bryant, as she then was, in H & K [2004] FMCAfam 140, where Her Honour said at [12] “It is clear that joint parental responsibility includes responsibility for the children’s education”.
The mother’s counsel produced a minute of orders that he submitted would appropriately meet the needs of the father in respect of the child’s birth certificate.
In respect of the father’s proposed order 3, providing for a specific order for contact in favour of the grandparents, he conceded that the child had a good relationship with his grandparents. Unfortunately, the relationship between the mother and the grandparents has broken down. The orders specifically included provision for the child to go to New Zealand, where the grandparents live. In any event, the grandparents are not applicants and so the Court should dismiss the application.
Mr Thistleton submitted that the proposed amendments to the contact orders were unnecessary. The issue had been “done to death” at the earlier proceedings. The time for contact to commence was a matter of commonsense. The mother did not want a web cam installed. as it would invade her privacy. It was not necessary or appropriate.
The final issue in the submission by counsel for the mother was the question of the child’s surname. He said that the matter had been specifically covered by Order 25 of the September orders. The father had agreed to the decision at the time, but obviously has reflected on it since. The child B has been operating under that particular name and is used to it.
The father submitted that he was seeking an opportunity to build on the current framework and play a key role in his son’s life. He said that he had no intention of dispensing with the September 2003 orders entirely. He sought to provide clarity. He was seeking clarification of the orders as the mother was misinterpreting them.
The father said that he had no option but to agree to the consent orders in 2003. He had had only minimal contact with B up till then. In his view, he was under duress when he agreed to the orders.
He further submitted that he had given the 2003 orders a fair go, but there were significant changes in circumstances.
The father said that the child B would start his school career in 2005, hopefully at C C G School. As early as 2003, the mother had calculated school holiday contact by finding the halfway point and subtracting 24 hours. In this way, the child lost either 12 or 24 hours contact. In his view, the holidays should be divided in half.
The father pointed that there were difficulties when he was travelling with his son, because of the different surnames. The child’s birth certificate did not have the applicant’s name on it as the father, so he needed a document identifying him as the child’s father.
The father expressed his opinion about his son’s maturity, saying that the boy had since developed a maturity beyond his years.
It is the father’s view that there is a need for Order 1A that he proposes so that he may have the input into important decisions in the child’s life. He is seeking an order for there to be consultation about important events.
The father submitted that the decision in H & K (supra) was “ominous”. He made the point that, when dealing with parenting orders, third parties such as educational authorities do not read the Family Law Act. There is a need for clear orders to give to the C C G School.
The child’s birth record is an issue that troubles the father. There are issues around where the father’s name appears on the birth certificate. The mother agreed for the father’s name to be to appear in the box marked “father” and not in the box marked “endorsements”. He said that the mother could have fixed this issue at any time over the past five years.
On the issue of the child’s surname, the father submitted that the name ‘A’ is not all that common a surname. He denied the mother’s assertion that he said the adoption of that name was “a good idea” but conceded that it was a fact that he had agreed in September 2003. He expressed concerns about the use of four different names at the school. There was an issue about the child’s half sister, N D having a different name. He referred to the lengthy E-mail conversation between the parties about the name. The use of four surnames is unwieldy and impractical. He suggested hyphenated names. Fathers relate to their children through “name-bonding”, he submitted.
The father seeks an order permitting the paternal grandparents to have their own specific contact with their grandson. He suggested two nights of a year (but out of the mother’s time with the child). The father said that in his cross-examination of her, the mother said that the parental grandparents no longer like her. He said that they actually distanced themselves to avoid putting pressure on her. I note that there is no evidence of this. It does not appear in the affidavit of Mr F B.
Significantly, the father said in open court that he was happy to pay the child’s school fees at C C G School. He said that he was excited that the child is going to C C G School. He said that he could either pay all of the fees and then seek a rebate from the child Support Agency or he could just pay half the fees. The father said to the Court:
I just needed to say this so there is no doubt.
The father referred to some photographs of his son that he had tendered during the hearing. He said that there had been lots of progress in the boy’s development. As a father, he can provide for the needs of his son in a good way. He submitted that B is developing because of the contact with his father. The mother agreed that he had developed well. He is a changed boy, the father submitted, since the September 2003 orders were made.
The father raised concerns about the way in which the contact orders were expressed. He submitted that orders for school holiday contact should relate to the school that the child actually attended. He went to say that not enough weight was given in the consent orders to the fact that these orders will go through until the child reaches the age of 18 years.
Telephone contact is an issue that causes the father some concern. He says that he rings on a mobile telephone and the call sometimes drops out. He uses a hands-free telephone in his car. The mother says that Wednesday telephone contact only applied during the school term. The father says that it is every Wednesday.
In conclusion, the father said that he has always sought a shared parenting regime. These orders will bring the arrangement closer to that goal. In conclusion, the father said that he would consent to an order that he would pay half of his son’s school fees at C C G School.
In reply, Mr Thistleton submitted that the contact orders, as drafted, referred to gazetted school holiday dates, meaning public schools. As far as the payment of school fees is concerned, he submitted that the Court would need to make a departure order in addition to an order for the part payment of school fees.
The principles to be applied
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration (s.65E).
Except when it would be contrary to a child’s best interests, a court should have regard to the principles set out in s.60B(2) of the Family Law Act. These include children’s right to know and be cared for by both parents, and their right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development.
In determining the best interests of a child, the court must consider the matters set out in s.68F(2). These matters include the wishes of the child, taking into account the child’s maturity and level of understanding, and the nature of the relationship of the child with each of the child’s parents and with other persons.
If there is an application to vary parenting orders made on a previous occasion, the Court must consider a number of principles derived from earlier decisions. These principles are:
a)The onus is on the applicant who seeks to reverse an earlier residence order to satisfy the court that there has been a change in circumstances since the original was made sufficient to require the matter to be re-litigated (see Hayman & Hayman (1976)
FLC 90-140; Rice & Asplund (1978) 6 Fam LR 570; (1979)
FLC 90-725)b)The principle is the same whether the earlier order is one made after a defended hearing or one that was made by consent, provided that the relevant issues were considered
(see Freeman v Freeman (1987) FLC 91-857);c)There is a discretion in the trial judge to decide the question of a change in circumstances as a preliminary issue or to proceed to a full hearing (see Bennett v Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191; King and Finneran (2001) FLC 93-079;
D and Y (1995) 18 Fam LR 662; FLC 92-581);d)The change in circumstances must be sufficient to warrant a
re-examination of the issue of residence, but need not satisfy the court that those changed circumstances would result in a change to the orders, only that there is a real likelihood of such a change (see Rice & Asplund (supra); King and Finneran (supra); D and Y (supra);e)The evidence of changed circumstances to be considered by the court is not restricted to the evidence available at the time the application was commenced, but is the evidence available at the time the circumstances are considered by the court; and
f)The evidence of changed circumstances required to persuade a court that contact orders need to be reconsidered may not necessarily be as weighty as that required to reopen the question of a child’s residence. The length of time that has passed since the earlier orders were made will usually be a relevant factor
(S & C [2003] FMCAfam 417).As the father is applying for an order changing the child’s surname, I will cite the principles that apply to this consideration.
In Chapman and Palmer (1978) 4 Fam LR 462; FLC 90-510, the Full Court of the Family Court stated that the general principle appeared to be that the Court would not intervene to prevent a parent from changing the name of a child in the custody (however) described of that parent unless the Court were satisfied that “The change was made without the consent of the other parent and that it does not promote the welfare of the child”.
The Full Court set out a number of factors to which a court should have regard, including:
a)The welfare of the child is the paramount consideration;
b)The short and long term effects of any change in the child’s surname;
c)Any embarrassment likely to be suffered by the child if his or her name is different from that of the parent with whom that child lives;
d)Any confusion that may arise for the child if his or her name is not changed;
e)The effect that any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage (if the parties were married); and
f)The effect of frequent or random changes of name.
In Beach and Stemmler (1979) FLC 90-692 Connor J took into account the matters set out in Chapman and Palmer (supra) and mentioned certain additional matters that may be relevant:
a)The advantages both in the short term and the long term that will accrue to the children if their name remains as it is;
b)The contact that the husband or father had and is likely to have in the future with the children;
c)The degree of identification that the children now have with their father: and
d)The desire of the father that the original name be restored.
In Mahony and McKenzie (1993) FLC 92-408, Warnick J attached no significance to the fact that the child’s surname had been registered as the father’s surname at birth. He held that a number of benefits could be expected to arise from the use of a hyphenated surname, made up of the surnames of each parent. One such advantage was that the use of the name accorded with the reality of life. The child had an ongoing relationship with both parents.
In Flanagan and Handcock (2001) FLC 93-074, the Full Court held that the power to change a child’s name is clearly an aspect of parental responsibility as defined by s.61B of the Family Law Act. The resolution of a dispute between parents of a child about that child’s name is ultimately to be resolved by the making of a specific issues order under the provisions of s.65D, which is governed by the provisions of s.65E. In its turn, s.65E requires the court to consider the welfare of the child as the paramount consideration.
Section 61B of the Family Law Act states:
In this Part[1], parental responsibility, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
[1] Meaning Part VII of the Act
Section 65D of the Act states:
(1) In proceedings for a parenting order, the court may, subject to this Division, make such parenting order as it thinks proper.
(2) Without limiting the generality of subsection (1) and subject to this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
(3) (Not relevant).
One other issue that should be considered is the father’s wish for a contact order in favour of the paternal grandparents. There are a number of cases where grandparents seek orders for contact with their grandchildren. The individual circumstances are clearly very relevant.
In Stevens v Lee (1991) FLC 92-201, Kay J considered the question of contact between a grandmother and her grandchild where the relationship between the child’s mother and the grandmother was hostile and acrimonious. In that case, the court had to weigh and consider the benefits that the child would gain from the contact with the grandmother against the strain and distress that may other wise be caused should the child have that contact, due to the mother’s complete loathing sentiments towards the grandmother. Kay J concluded, bearing in mind that the best interests of the child were the paramount consideration, that:
The benefits that the child would get from direct contact with his grandmother would not outweigh the trauma and difficulties which would be brought about by the mother’s attitude.
Treyvaud J considered the same issue in Bright and Bright v Bright and Mackley (1995) FLC 92-570, which was a case where the paternal grandparents sought contact with their grandchild. The child’s parents opposed the application on the grounds that the child might fret for her mother and the child should not be caught in a dispute between her parents and her grandparents.
Treyvaud J referred to the decision in Stevens v Lee, saying, at
p. 81,658:
It is very important for children’s proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended family.
Conclusions
I will deal individually with the various orders that the Applicant seeks.
Order 1A sought by the father is :
That each parent shall share joint responsibility for making decisions concerning the long term care, welfare and development of the child.
Parental responsibility is defined in s.61B of the Family Law Act (quoted in paragraph 53). Section 61C provides that each parent of a child has parental responsibility for that child, subject to court orders. The section states:
61C(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
61C(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
61C(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Section 61D of the Act sets out the relationship between parental responsibility and parenting orders:
61D(1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
61D(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
Bearing the above sections in mind, it is clear that the consent orders of 25 September 2003 did not affect the parental responsibility of the two parents as set in ss.61C and 61D. Order 1 is a residence order:
That the Child B A, born 9 April 1999, reside with the Mother.
Each of the parents had parental responsibility for the child B before Order 1 was made, under s.61C. That responsibility would only have been affected under s.61C(3) if the order had so provided. As the order did not expressly provide that the parental responsibility of either party was affected, the order did not take away or diminish any aspect of the father’s parental responsibility (see s.61D(2)).
Similarly, in my view, Orders 5 to 8 inclusive of the consent orders do not change the situation. They are all specific issue orders.
Order 5 deals with recording the parents’ particulars:
Both parents’ particulars are to be advised to the Pre School and or School on enrolment of the Child and both parents[2] shall be placed on any “Next of Kin” and “Emergency” contact lists.
[2] Presumably, the order means that both parents’ names and contact details are to be placed on the lists.
Order 6 contains a requirement for consultation:
The Mother and the Father shall jointly consult with each other and keep each other informed regarding the Child’s Educational needs, events and achievements.
Whilst the order contains a mandatory requirement for consultation on the specific issue of the child’s education, it does not alter the statutory position about parental responsibility in general. It is a specific issues order, relating only to the area of education.
Order 7 deals with medical and dental needs:
The Mother and the Father shall jointly consult with each other and keep each other informed regarding the Child’s medical and dental care.
The order certainly contains a mandatory requirement for consultation on medical and dental matters, but it is still a specific issues order. It does not, to my mind, affect either parent’s rights in regard to parental responsibility in general, although it does lay down a mandatory set of requirements in the area of medical and dental care.
Order 8 returns to the subject of the child’s schooling:
Each parent shall be at liberty to communicate directly with the Child’s school teachers and other School authorities in respect of the child’s progress at School and attend such school activities as is appropriate.
It certainly appears to me that Order 8 is a specific issues order, and has no effect on the parties’ parental responsibility. All it does is to
re-state some of the rights of the parents under s. 61C.
It seems quite clear that the consent orders of 25 September 2003 have not changed the situation away from that provided by s.61C of the Act. They each have parental responsibility, and, subject to Orders 6 and 7, they are entitled to exercise those powers and duties individually. In the particular areas of the child’s education and his medical and dental care, Orders 6 and 7 impose a requirement that they consult with each other and keep each other informed.
The father’s proposed Order 1A would change the legal situation. It would impose a mandatory requirement on the parents that they exercise parental responsibility jointly, and only jointly. This situation has been considered in a number of cases.
In a decision on s.63F, the predecessor of s.61C, In the Marriage of Talbot (1993) 16 Fam LR 910; FLC 92-397, Buckley J held that the effect of s.63F(1) was to make each of the parents a separate not a joint guardian of the child:
As each of the parents is a guardian, each is prima facie entitled to make decisions concerning the long-term welfare of the children of the marriage independent of the other…The exercise of a guardianship right does not require joint action on the part of both guardians, but…the actions of one alone will suffice
(16 Fam LR 910 at 914).The Full Court of the Family Court picked up this issue in the well-known decision of In the Marriage of Harrison & Woollard (1995)
18 Fam LR 788; FLC 92-598. Justices Fogarty and Kay made this point on the operation of s.63F(1):
The practice of making ‘joint’ guardianship orders is a common one, but it is not the normal one prescribed by legislation. Unless it is by agreement or unless particular reasons are given, it should be usual for a judge at first instance who wishes both parents to continue to be guardians to make no order at all as to guardianship and leave the matter as established by the legislation (18 Fam LR 788 AT 805).
The Family Law Reform Act 1995 (Cth) removed the concept of “guardianship” and introduced the concept of “parental responsibility”. This is defined, as I said, by s.61B. Section 61C(1) replaced s.63F(1) and substituted the term “parental responsibility” for the earlier term “guardianship”. In all other respects it is couched in similar terms as s.63F(1).
In B and B Family Law Reform Act 1995 (1997) 21 Fam LR 676;
FLC 92-755, the Full Court confirmed the view expressed in the earlier decisions of Harrison & Woollard (supra) and Talbot & Talbot (supra). In discussing s.61B, their Honours Nicholson CJ, Fogarty and Lindenmayer JJ had this to say:
9.26. Read in conjunction with s.60B(2)(c) the emphasis is on the continuance of responsibility independently of the status of the parental relationship. Section 61D(2) provides that a parenting order does not take away or diminish any aspect of parental responsibility except to the extent expressly provided for in the order or necessary to give effect to the order.
9.27. An important issue is whether parents may exercise this responsibility independently or whether they must do so jointly…
9.29. In the absence of a specific issues order, we think it unlikely that the parliament intended that separated parents could only exercise all or any of their powers or discharge all or any of their parenting responsibilities jointly in relation to all matters. This is never the case when parents are living together in relation to day-to-day matters, and the impracticability of such a requirement when they are living separately only has to be stated to be appreciated.
9.30. As a matter of practical necessity either the resident parent or the contact parent will have to make individual decisions about such matters when they have the sole physical care of the children. On the other hand, consultation should obviously occur between the parents in relation to major issues affecting the children such as major surgery, place of education, religion and the like. We believe that this accords with the intention of the legislation (21 Fam LR 676 at 729-30).
In the case before me, the father’s proposed Order 1A would change the legal status. It would go from an individual exercise of parental responsibility subject to specific requirements for consultation and information in respect of medical, dental and educational issues to a mandatory requirement that parental responsibility be exercised jointly (see In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324;
FLC 92-778).
This is clearly a different situation form that set out in the consent orders of 25 September 2003. I accept the submission by the mother’s counsel that the parties had clearly given their attention to the question of parental responsibility as the orders set out specific requirements for consultation in respect of the medical, dental and educational issues. The father said in his submission that he had always sought a shared parenting regime, and that the orders he asks for would bring him closer to that position (see paragraph 41).
I am not satisfied that the circumstances have been shown to have changed to such an extent that there is a need to reopen the question of residence. That issue was decided by consent orders made in the Family Court as recently as 25 September 2003. The father was legally represented and he consented to the orders after a degree of discussion between the parties and their lawyers. I do not accept that he was under any form of duress, although I accept that the father was keen to start a regular and frequent contact regime with his son.
The question of shared parenting needs a fair amount of co-operation between parents for it to be successful, bearing in mind that the best interests of the child remains the paramount consideration. Ryan FM sets out the factors that a court should examine in a most helpful, recently-published decision, T v N (shared residence) (2004) 31 Fam LR 281; [2001] FMCAfam 222:
·The parties’ capacity to communicate on matters relevant to the child’s welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child(ren) can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?
·Whether the parties agree or disagree on matters relevant to the child’s day-to-day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in two homes? If the child leaves the necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as parent.
·The child’s wishes and the factors that influence those wishes.
·Where siblings live (31 Fam LR 281 AT 303-4).
There is very little in the way of evidence that would assist the Court in deciding that a shared parenting arrangement would be in the child’s best interests, apart from the fact that the two parents both live on the New South Wales Central Coast. The history of litigation between them does not bode well for a cooperative relationship in the future.
In any event, the parties considered these issues in September 2003. The test in Rice & Asplund has not been met. The father has not shown any change of circumstances sufficient to justify varying the current arrangements for parental responsibility. He has not shown how such a change would be in the child’s best interest. I intend to dismiss that part of the application.
The father seeks Order 1B, dealing with day-to-day care, welfare and development of the child B. The proposed order is:
That each parent shall have sole responsibility for the day-to-day care, welfare and development of the child at those times the Child is in their respective care.
The mother consents to that order.
The father seeks Order 2, to this effect:
That the mother shall do all necessary things necessary to cause the Registrar of the NSW Registry of Births Deaths and Marriages to:
·Include the father’s details on the birth record and issue a new birth certificate;
·Adjust the register to reflect the amended Order 10 herein.
·The mother shall upon receipt of the new Birth Certificate destroy all previously issued birth certificates.
Mr Thistleton of counsel, for the mother, has indicated that his client will consent to an order that the father should be recorded on the child’s birth certificate and that the father should provide the appropriate documents. The mother would then sign and lodge them. He has provided a minute to this effect, which also contains a slightly redrafted Order 1B. I propose to make orders in accordance with that minute.
The next issue to be considered is the father’s proposed order about contact orders in favour of the paternal grandparents on the occasion that they visit Australia. Section 65C(ba) of the Act envisages an application by a grandparent, but this is not an application brought by the grandparents. It is the father who is the applicant.
There is an affidavit by F N L B, the paternal grandfather, in support of the father’s application. He deposes to having looked after the child B on many occasions between the date of the child’s birth and October 2001. He states that the situation changed after the parties separated, and he and his wife were only able to see the child under supervision, and the mother has at times refused contact. He states that “M (the mother) has generally actively excluded me from B’s life and I seek that any orders made in this matter take into account B’s needs to have contact with his paternal grandparents”.[3] He makes the point his health and financial situation do not always make it possible for him to travel to Australia to see the child when the father is exercising contact.
[3] Affidavit of F.N.L. Butler sworn 5/8/2004, paragraph 18
It is difficult to see why this issue was not considered when the consent orders were negotiated in September 2003. I note that the name of the father’s solicitor, Graeme Barry Fernie, appears on the terms of settlement as the person who actually drafted the terms. I accept that the grandparents and the mother are now estranged, but the evidence shows that the father and his parents have a good relationship. The orders allow the father to take the child out of Australia, so there is no reason why the father and son cannot fly to New Zealand to visit the grandparents. In any event, the grandfather is able to travel to Australia from time to time. He was present in court on 8 October 2004.
The order that the father seeks would allow two extra days of contact for the benefit of the grandparents in addition to the contact already provided to the father. I have no doubt that the child has a good relationship with his grandparents and enjoys their company, but I am not satisfied that the evidence shows that there should be two extra days of contact each year in favour of the grandparents. I propose to dismiss this part of the application.
The father seeks a number of amendments to the contact orders that apply to his own contact with the child B. He says that the mother misinterprets the orders, although the mother says that the orders are perfectly clear to her.
There has to be finality in litigation. Section 68F(2)(k) makes it clear that it is in the child’s best interests to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. Whilst it is not in a child’s best interests for a parent to seek to reopen parenting proceeds in order to try for a more favourable outcome, parenting orders should be drafted with clarity and precision. This is particularly important where the parents do not get on well. The history of litigation between the parties, and the voluminous e-mail correspondence annexed to the affidavits leads me to the view that the relationship between these two parents leaves much to be desired. The drafting of the Terms of Settlement that led to the consent orders of 25 September 2003 does not have the precision and clarity that I would like to see.
I propose to vary the contact orders slightly so as to provide clarity in order to avoid the risk of contravention proceedings in the future. The order should make quite clear when school holiday contact starts and finishes and when alternate weekend contact recommences after school holidays after school term starts.
I do not propose to vary Order 2.2 as the father seeks. Order 2.2 states that the father will have additional contact from the year 2007 on:
2.2 From 8.30 a.m. Monday after the first contact weekend during the gazetted school year in 2007 to 8.30 a.m. Tuesday the following day once in each period of four (4) weeks thereafter other than during school holidays.
What the father wants to do is to bring this increased contact forward and double it by substituting this order:
2.2 From 8.30 a.m. Monday in “each week following” a “weekend Contact period” during the Child’s gazetted school terms to 8.30 a.m. Tuesday.
The effect of this amendment would be to give the father a long weekend of contact each fortnight starting immediately, instead of one long weekend every four weeks starting in 2007. The father has stated that the child has matured and developed since the consent orders of
25 September 2003, but that is not sufficient to justify a significant increase in contact that the parties agreed to only little more than a year ago.
I am persuaded, however, that the father’s proposed amendment to Order 2.1 to set a time when alternate weekend contact is to resume after the school holidays is an aid to clarity. I propose to order that alternate contact periods are to recommence on the first weekend of the school term in those years when the father has school holiday contact in the first half of the school holidays and on the second weekend of the school term in those years when the father has school holiday contact in the second half of the school holidays.
I am also convinced that the reference to NSW “gazetted” school holidays is confusing in the context of this child, who is to attend a private school. In dealing with school holiday contact, the only relevant school holidays are those that apply to the school or schools attended by the children. The sooner that practitioners cease referring to “gazetted school holidays” in consent orders for contact, the better.
The father seeks to redraft Order 2.4.1, which deals with the conclusion of school holiday contact. The current order says:
Contact shall end 24 hours prior to the commencement of school term.
The father’s suggested amendment does not, with respect, add any clarity at all. I propose to draft the orders with what I hope will be a little more clarity and precision.
The father seeks to amend Order 2.12, which provides for telephone contact, by adding a requirement that the mother provide a computer equipped with what is known as a web cam. This appears to be at the mother’s expense.
The terms of the proposed amendment would add reference to E-mail and web cam, and add the words:
In order to facilitate telephone contact the Mother shall:
(1)provide the child with a quiet environment for contact;
(2)make available to the child a computer with a web cam;
(3)keep the father informed at all times of a current landline telephone number where the child can be contacted.
The mother opposes this amendment, taking the view that a web cam would be an intrusion on the privacy of the home she shares with her new husband.
I do not see why the mother should be put to the expense of providing a computer equipped with the father to facilitate the father’s contact. The child is not yet 6 years old. In any event, the father gives his occupation as “computer systems – IT engineer”. If he wishes to communicate with his son by means of e-mail, it appears to me that he should be the one to supply the necessary equipment.
I am not satisfied that the father has shown a change of circumstances sufficient to warrant varying the order for telephone contact. I am of the view, however, that telephone contact should continue during the school holidays, where possible. I think it is in a different position from face to face contact on alternate weekends during the school term.
The father wishes to amend Order 10 by changing the surname of the child B from A to B. The father’s submissions centred on difficulties of travelling by air with a child whose surname is different to his own and on the fact that fathers relate to their sons by a process he described as “name-bonding”. I have not heard of “name-bonding” before, and the father advanced no evidence about this theory.
The father’s submissions on the subject of the child’s surname ignored the fact that he had consented to orders in the Family Court in September of last year that the child’s surname should be A. Difficulties of travelling with a child in days of increased security have hardly arisen since 25 September 2003. The operative date, I suggest, would be 11 September 2001. The fact that the child’s half-sister N D has a different surname is, with respect, not at all persuasive that the child B’s surname should change from A to B. The father is not asking that B’s surname should be changed to D.
The child has been using the surname that the parties agreed to in the Family Court in September last year. I cannot see that it is now in his best interests to change his surname. There has been no change of circumstances to warrant such a change.
The father agreed to a number of parenting orders and specific issues orders less than a year before he started proceedings to vary those orders. I accept the fact that some of those orders were not well drafted, and I have varies some to provide clarity and avoid the likelihood of confusion. The mother has also consented to two changes, and those changes appear to me to be in the best interests of the child.
I am not persuaded that the father was under any form of duress when he consented to the orders last year. He was legally represented. His own lawyer appears to have drafted the Terms of Settlement. The father has not shown that the orders need to be changed other than in the ways that I have previously mentioned.
School fees and child support
The father has agreed that he will pay half the school fees for the child B to attend the C C G School in 2005 and onwards. He has made a declaration in open court to this effect, and it is to his credit that he has made his position clear in this way. In my view his concession was a responsible action which is clearly in the best interests of his son.
I agree with Mr Thistleton’s submission that a departure order will be necessary under the provisions of s.117 of the Child Support (Assessment) Act 1989. I note that neither party has complied with the requirements of s.116(1A), in that no objection has been made to the making of, or the refusal to make, a departure determination under
s.98X of that Act.
In the circumstances, however, I find that the father is party to an application pending in this Court. I am satisfied that it would be in the interest of the mother, being the carer entitled to child support, and the father, being the liable parent, for the court to consider whether an order should be made under Division 4 of the Act.
I propose to make the necessary departure order to provide for the payment of the school fees. I am satisfied that a ground for departure mentioned in s.117(2)(b)(ii) of the Act exists, in that the child is to be educated in the manner that is expected by his parents. I am also satisfied that it would be just and equitable as regards the child, the child’s mother and the child’s father and otherwise proper to make the order for departure.
All other applications will be dismissed.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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