Clement and Clement
[2010] FMCAfam 1143
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLEMENT & CLEMENT | [2010] FMCAfam 1143 |
| FAMILY LAW – Parenting – interim – Rice & Asplund – change to school holiday time – final orders exist less than 12 months. |
| Family Law Act 1975, ss.60CA, 60CC |
| Goode &Goode (2006) FLC 93-286 Marsden & Winch (2009) FamCAFC 152 Rice & Asplund (1978) 6 Fam LR 570 SPL & PLC (2008) FamCAFC 16 |
| Applicant: | MR CLEMENT |
| Respondent: | MS CLEMENT |
| File Number: | PAC 2925 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 7 September 2010 |
| Date of Last Submission: | 7 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Argyle Lawyers Pty Ltd |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
All extant applications be adjourned to this Court on 11 November 2010 at 9:30am for mention.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Paragraph 4(b) of the Orders made 20 November 2009 (“the 2009 Orders”) be varied to enable [X] born [in] 2002 (“her”) to spend time with the Applicant by reading as follows:
b. During the short school holidays:
(i)in 2011 and each alternate year thereafter, from 5:00pm on the last day of term until 5:00pm on the Saturday closest to the midpoint of the short school holidays;
(ii)in 2010 and each alternate year thereafter, from 5:00pm on the Saturday closest to the midpoint of the short school holidays until 5:00pm on the last day of the short school holidays;
For clarification of paragraph 2 herein, her live with the Respondent during the short school holidays:
(a)in 2011 and each alternate year thereafter, from 5:00pm on the Saturday closest to the midpoint of the short school holidays until 5:00pm on the last day of the short school holidays; and
(b)in 2010 and each alternate year thereafter, from 5:00pm on the last day of term until 5:00pm on the Saturday closest to the midpoint of the short school holidays;
The Applicant’s time pursuant paragraph 4(a) of the 2009 Orders recommences 21 days after the time spent pursuant to paragraph 2 herein.
AND THE COURT NOTES THAT:
(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Clement & Clement is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 2925 of 2008
| MR CLEMENT |
Applicant
and
| MS CLEMENT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR CLEMENT (“the father”) against
MS CLEMENT (“the mother”) seeking various parenting orders in relation to her of the relationship, [X], born [in] 2002 (“[X]”). More specifically, the father is seeking various parenting orders on a final and interim basis. The father also filed a contravention application on 23 July 2010.
The father’s initiating application is supported by his affidavit, sworn 2 August 2010 and filed 4 August 2010, and his affidavit, sworn today, which I will allow him to file in Court. He is legally represented by
Mr Connor today.
The mother, in her response, to be filed within the next 48 hours, opposes the orders sought by the father. Indeed, she seeks the dismissal of the father’s application and costs. The mother relies on her affidavit, sworn today, and that will also be filed within the next 48 hours. However, I have read these documents for the purposes of today’s interim hearing. She is legally represented by Mr Dowd today.
Background
It would appear that the parties commenced cohabitation in 2001 and married in that year. They separated in March 2003 and were divorced in January 2005.
Parenting orders were made by consent in late 2003. Those orders were subsequently discharged by orders of Collier J on 20 November 2009. On that day, his Honour also delivered his reasons that underpinned the orders that he has made.
The relationship between the parties clearly remains fractured.
I propose adjourning the father’s contravention application for mention, to ascertain, at that mention hearing, whether he proposes to press it or withdraw it.
As to the substantive proceedings, I will also list them for mention on that day to ascertain whether the parties are in agreement that the proceedings should progress or whether there should be a hearing in respect of a discrete matter, namely Rice & Asplund issues.[1] At this stage, I note that the father is proposing to relocate to Sydney, from Townsville, on and from 23 September 2010.
[1] Rice & Asplund (1978) 6 Fam LR 570.
Issues
The dispute today solely focuses on an interim order being pressed by the father, namely that current orders be varied to enable him to spend time with [X] from 3 October 2010 to 11 October 2010 inclusive, rather than from 24 September 2010 to 2 October 2010 inclusive, as the current orders would provide for. The father’s request for a change arises because he wishes [X] to attend a wedding involving his partner’s cousin, which is due to take place in [B] on 10 October 2010, and that he has booked accommodation for the period 3 October 2010 through 11 October 2010 inclusive.
Agreed facts
The parties agree that there were orders pronounced by Collier J on
20 November 2009, following his Honour’s hearing of their dispute. They also agree that the current orders would not permit the father to spend time during the September/October school holiday periods, as he requests.
Parties’ submissions
Mr Connor, for the father, submitted that the mother has been on notice for some time about the father’s request to have [X] in the second half of the school holidays in October 2010. His client was forced to commence these proceedings because the mother was opposed to the father’s request. Mr Connor asked the Court to reject any assertion that the father was “legally harassing” the mother, in respect of parenting matters.
Mr Connor argued that the Court had the power to make the orders sought. Moreover, Mr Connor submitted that the mother would not be inconvenienced by the making of the order today. He also submitted that the mother may find herself in a similar situation down the track, requesting variations to orders to assist with holiday plans and the like.
Mr Dowd submitted that his client was merely complying with the orders made by the Court, following litigation between the parties. The mother had, in Mr Dowd’s words, “taken the good with the bad” in her compliance with the existing parenting orders. Mr Dowd disputed the assertion that the mother would be accorded the same attitude by the father, should she have made the request for changes. And in this respect, Mr Dowd pointed to the contravention application, filed by the father, and his flagging proposed criminal litigation against the mother, arising out of a trip that she took with [X] to [omitted] this year. A trip which, the Court notes, was apparently taken during the time that the mother would otherwise spend with [X], pursuant to current orders.
Law and discussion
The Full Court of the Family Court decision of Goode &Goode (2006) FLC 93-286 (“Goode”) guides the Court’s approach in making interim decisions, and interim orders, in respect of parenting disputes. At paragraph 81 of that decision, the Court stated:
“In making interim decisions, the Court will still often be faced with conflicting facts, little helpful evidence in disputes between parents as to what constitutes the best interests of her.”
Clearly, this matter is such a case. More specifically, it raises the reality the Court cannot fully determine issues of credit, today, as the evidence being presented by the parties has not been tested by cross-examination. That having been said, the Full Court in the Goode decision reminded the Courts that the legislative pathway must still be followed. In other words, the relevant provisions of the Family Law Act 1975 (“the Act”) post the 2006 shared parenting amendments must be followed at an interim hearing.
Rice & Asplund issues
That all having been said, there is an issue here about whether the existing orders should remain in full force and effect for the reasons expressed by the Full Court in the decision of Rice & Asplund. Namely, that where a final parenting order has been made, the applicant must establish a significant change of circumstances before the Court will entertain a rehearing of parenting issues. In other words, before discharging or varying existing orders:
“The Court must be satisfied there are significant changed circumstances that require the Court to consider afresh how the welfare of her should be served.”[2]
If the Court did not adopt such an approach, then to quote Evatt CJ, in the Rice & Asplund:
“The result would be to invite endless litigation for change.”[3]
[2] Ibid, at 572.
[3] Ibid.
The rule has been considered in recent cases such as SPL & PLC (2008) FamCAFC 16, a decision of Warnick J; and the Full Court in Marsden & Winch (2009) FamCAFC 152 (“Marsden”). Although the issue of Rice & Asplund was not the subject of submissions today, given the narrowness of the present dispute, it may be a consideration when the matter returns before the Court.
It is quite clear from the Full Court’s decision in Marsden that if a significant change does occur, the Court would also need to be satisfied that a re-litigation would not demonstrably be contrary to [X]’s best interests. The Court suggested that the decision would require a Court such as this to consider:
“1. The past circumstances, including the reasons for the decision and the evidence it was based upon.
2. Whether there’s any likelihood of orders being varied in a significant way as a result of a new hearing.
3. If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to her, or children, caused by litigation itself.”[4]
[4] Marsden & Winch (2009) FamCAFC 152 at [50] (per Bryant CJ, Finn and Cronin JJ).
Their Honours then said:
“Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.”[5]
Their Honours also stated the following, at paragraph 56 of the Marsden decision:
“From our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of her but may also be because of the need to provide procedural fairness in matter in which a Court determines how the rule will be applied.”
[5] Ibid.
And at paragraph 58, their Honours say:
“That question might be better formulated in another way, in the following proposition. Namely that there is a requirement, firstly, for a prima facie case of changed circumstances to have been established and secondly, for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.”
The Court is faced with the reality that in the midst of a busy duty list today, it needs to determine the specific dispute before the Court because the school holidays commence in just over two weeks’ time. Clearly, the Court needs to be satisfied that [X]’s best interests would be served by making the orders sought by the father, as he wants, or dismissing that request and leaving the orders as is, as the mother wants.
At this point I note s.60CA of the Act provides:
“In deciding whether to make a parenting order in relation to a child, the Court must regard the best interests of her as the paramount consideration.”
Clearly, to determine [X]’s best interests, the Court must consider the primary considerations or factors set out in s.60CC(2) of the Act and the additional considerations in s.60CC(3) of the Act, where relevant.
Primary considerations: s.60CC(2)
Section 60CC(2)(a) requires the Court to consider the benefit of [X] having a meaningful relationship with both of her parents. At this point, let me note that meaningful does not necessarily mean equal but it clearly signifies that both parties should be involved with their children and consequently signifies an expectation for time to be spent. The right of a child to spend time with each parent and extended family is a right of [X].
Under s.60CC(2)(b) the Court must consider the need to protect [X] from physical or psychological harm and being subjected to abuse, neglect or family violence.
In this case, the mother argues she does not know the father’s partner’s family. That is the family that [X] would be in contact with during the period of his stay in [B]. That is disputed by the father.
Additional considerations: s.60CC(3)
With respect to the additional considerations in s.60CC(3) I firstly note that in respect of the “views of the child”, that I do not actually have [X]’s views before the Court today, apart from the father’s evidence.
As to “any other facts or circumstances”, I note that the mother has not submitted that she has had made any special plans for [X] for the forthcoming October school holidays and I specifically asked a question to that effect.
From my reading of Collier J’s decision, I formed the view that his Honour fashioned the orders to reflect the respective circumstances that existed between the parties. His Honour did not agree to the father’s request for an extra school holiday time and pronounced an order for time to be spent during school terms for eight consecutive nights. His Honour did, in my view, take into account the ease of [X] commencing that time at the end of the school term, so that she could immediately travel up to see her father. This will, of course, change when the father relocates to Sydney.
Conclusion
I am satisfied that [X]’s best interests would be served by making a minor variation to the existing orders that would facilitate the parties’ holiday time by alternating between the first and second weeks of such school term holiday periods, which is a more typical outcome when parents reside in the same city.
The father can have the second half of such school term holidays for the calendar year 2010, and each alternate year thereafter, and the mother can have the first half in the calendar year 2010, and each alternate year thereafter. In 2011, and each alternate year thereafter, the position will be reversed.
The father’s weekend time will also recommence on the Friday, three weeks after the time spent during school term holiday time.
I do not propose making any other orders until the Rice & Asplund issues are addressed by the parties.
I would remind the parties that common sense dictates that each should provide the other with full itinerary details well in advance, if they propose to travel with [X] outside New South Wales and, indeed, outside Australia.
There will be orders of the Court to reflect this interim decision.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 26 October 2010
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