Clement and Clement (No.2)
[2010] FMCAfam 1473
•20 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLEMENT & CLEMENT (No.2) | [2010] FMCAfam 1473 |
| FAMILY LAW – Parenting – Interim – amendment of spend time arrangements due to change in circumstances – arrangements for the child to travel overseas. |
| Family Law Act 1975, ss.60CA, 60CC, 62B, 64B, 65DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 Rice & Asplund (1978) 6 Fam LR 570 |
| Applicant: | MR CLEMENT |
| Respondent: | MS CLEMENT |
| File Number: | PAC 2925 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 20 December 2010 |
| Date of Last Submission: | 20 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Connor |
| Solicitors for the Applicant: | Argyle Lawyers Pty Ltd |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
THE COURT ORDERS THAT:
All extant applications be adjourned to this Court on 28 February 2011 at 9:30am for mention (“the mention hearing”).
The legal representatives of all parties be granted leave to inspect all subpoenaed material produced to date.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Paragraph 4 of the Orders made by the Family Court of Australia on
20 November 2009 be amended so that [X] born [in] 2002 (“the child”) spend time with the Applicant Father as follows:
“(4) (a) Each alternate weekend from after school Friday to 5:00pm Sunday extending to 5:00pm Monday in the case of a non long weekend, the first such weekend to be at the commencement of the 2011 School Term.”
Paragraph 4 of the Orders made by the Family Court of Australia on
20 November 2009 be amended to include the following:
“(4) (e) The child spend time with the Applicant Father at all other times as agreed between the parties.”
In the event that either party seeks to travel interstate or overseas with the child then that party provide the other with reasonable notice of not less than 21 days of their intention to travel with the child and such notice is to include:
(a)A written itinerary of the relevant plane, train and/or bus bookings and details;
(b)All accommodation details, including telephone numbers and websites where available; and
(c)A final written itinerary within seven (7) days of departure provide details of travel insurance and confirmation that the child has been registered on the Australian Government’s “Smart Traveller” website.
AND THE COURT NOTES THAT:
(A)The date of the mention hearing coincides with the return date of the Application in a case filed by the Applicant on 29 November 2010.
(B)The balance of the Applicant Father’s application in a Case filed 29 November 2010, the Respondent Mother’s application for costs with respect to the now withdrawn contravention application filed 23 July 2010 of the Applicant Father and the substantive proceedings are adjourned to the mention hearing.
(C)The Applicant Father advised the Court that he may be making an application as to costs relating to the Respondent Mother’s decision not to press the Rice & Asplund issue.
(D)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 (No.2) 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
These proceedings arise from and Initiating Application filed on
4 August 2010 by MR CLEMENT (“the husband”) seeking various parenting orders against MS CLEMENT (“the wife”) including an order that the current final parenting orders be discharged in part. Despite the general principle that each party should bear their own costs, the husband is also seeking an order that the wife pay the costs of these proceedings.
It would appear that the husband is seeking to discharge paragraphs 4(a), 4(b), 4(c), 4(d), 5(a), 5(b), 5(c) and 6 of the final parenting orders made by Collier J on 20 November 2009 in respect of the child of the relationship, [X], born [in] 2002 (“[X]”).
The final parenting orders arose from his Honour’s decision delivered on 20 November 2009 following a defended hearing, although some of the orders had the consent of the parties.
The husband’s application is opposed by the wife in her Response filed on 9 September 2010. In her Response, the wife is seeking, inter alia, that the husband’s application be dismissed and that her costs in the matter be paid by the husband on an indemnity basis.
The husband also filed a contravention application on 23 July 2010 but that was later withdrawn. After filing the Initiating Application, the husband filed an Application in a Case on 29 November 2010 and an Amended Application in a Case filed on 15 December 2010.
Today the Court only intends to deal with one major aspect of the Application in a Case (as amended), namely the spend time arrangements between the husband and [X] during school terms, plus an additional issue in respect of the conditions that might apply to either party travelling with [X] overseas. The Court will adjourn the balance of the Application in a Case (as amended) until 28 February 2011, which was the date that had been allocated as the return date of the interim application
When the matter came before the Court in a duty list on 7 September 2010, the wife asked for the matter to be listed as soon as possible for a preliminary hearing for consideration of the threshold question as to whether the husband’s application should be able to progress or be dismissed for the reasons expressed by the Full Court in the marriage of Rice & Asplund (1978) 6 Fam LR 570 (“Rice”). On that occasion the husband pressed the Court for an interim hearing on whether the current orders should be varied to enable [X] to travel and spend time with the husband in [northern New South Wales] in what was then the forthcoming third school term holidays for the period 3 October 2010 through 11 October 2010, inclusive, the reason being that it would enable them both to attend a wedding involving his partner’s cousin.
Given the circumstances, the Court allowed an interim preliminary hearing to proceed on that date in respect of that discreet issue and thereafter gave its decision, amending various orders. The Court subsequently settled the reasons for that particular decision and released them to the parties on 26 October 2010.
The matter returned before the Court on 11 November 2010 and the Court granted the request of the wife to list the matter to today for submissions in relation to the Rice threshold question. In addition, on 11 November 2010, orders were made withdrawing and dismissing the husband’s contravention application.
When the matter came before the Court today, the wife, through her solicitor, advised the Court that she would not be seeking to raise the Rice issue. The Court was also advised that the husband would be seeking to raise the interim parenting matters before the Court today in addition to the overseas travel issue referred to previously.
Background
The background of the parties is set out in paragraphs 4 to 7 inclusive of the decision of the Court delivered on 7 September 2010.
Evidence
Both of the parties provided the Court with affidavit evidence. The father specifically relies on his affidavit sworn on 26 November 2010 and the affidavit of his partner, Ms W, also sworn that day.
The wife has only filed one affidavit in these proceedings to date, sworn on 7 September 2010.
The husband is represented today by Mr Connor of Counsel and the husband appears in person. The wife is represented today by her solicitor, Mr Dowd, but did not appear in person.
Issues
The dispute in this interim decision focuses on two issues:
·firstly, whether the current spend time arrangements involving [X] and the husband should be varied (as the husband seeks) to increase the time that he currently spends with [X] during school terms from the current arrangement of one weekend in every three weekends from Friday through Sunday to each alternate weekend from Friday to Tuesday as the father seeks. The wife does not seek any changes to the current parenting orders in respect of the school terms; and
·secondly, whether the current parenting orders should be amended to provide for the circumstances whereby a party may travel with [X] to an overseas country.
As stated, the Court will not consider the balance of the husband’s Initiating Application or Amended Application in a Case in this decision.
Moreover, the Court had no time to deal with the wife’s application for costs arising out of the now withdrawn contravention proceedings. The Court can do so on the next occasion.
The husband also raises, it would appear, an issue about costs arising out of the wife’s decision not to press the Rice argument. However, the Court notes that the wife caused her solicitors to write to the husband’s solicitors on 30 November 2010 giving notice about not pressing that issue. That letter was tendered in Court by the wife’s solicitor and the Court does not propose to deal with that issue today.
Agreed & Disagreed Facts
The parties agree (or do not appear to be in significant disagreement) in relation to a number of matters. Orders were made by consent in the Family Court of Australia on 3 December 2003 that apparently provided for the parties to have what was then described as “joint parental responsibility” for [X] and for [X] to live with the wife and spend time with the husband as agreed. It would appear that the parties later agreed – although it does not appear that this was in the form of a court order – that the spend time arrangements would be each alternate weekend from Friday through Sunday during school terms. The husband, it would appear, filed a further application in 2008 seeking different parenting orders and these arose from his decision to relocate from Sydney to Townsville. As previously indicated, Collier J heard that application and made orders on 20 November 2009.
It would appear that his Honour’s orders were consented to with the exception of the order relating to the Christmas long vacation – and his Honour made those orders accordingly. In summary, those orders provided that:
·the parties have equal shared parental responsibility;
·[X] to spend time with the husband during school term every third weekend from Friday through Sunday; and
·[X] to spend time with the husband for, effectively, half the school holidays, although not in block time, during the summer vacation.
The parties indicated today that they were in disagreement over whether the orders that his Honour made on 20 November 2009 as a result of the husband’s decision in September 2010 to relocate back to Sydney from Townsville. There is also a dispute about the wife travelling with [X] overseas and whether there need to be orders in place including an airport watch list order.
The Parties’ Submissions
Both parties’ legal representatives gave submissions to the Court. Given that there are a number of interim hearings before the Court today those submissions will not be summarised but would be reflected in today’s transcript.
The husband’s Counsel also provided the Court with a written case outline.
Law & Discussion
All parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). Parenting orders are defined in s.64B of the Act and they deal with issues such as where a child is to live, the time the child is to spend with another person or otherwise allocate parental responsibility in relation to a child. The guiding principle, of course, is enunciated in s.60CA of the Act which states:
“In deciding whether to make a particular parenting order in relation to the child the Court must regard the best interests of the child as the paramount consideration.”
Section 60CA through s.60CC deal with how the Court determines the best interests of the child. Most relevant to today’s proceedings would, of course, be the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3), where relevant. These will be considered briefly in a moment.
At this point, it is noted that the decision of the Full Court of the Family Court of Australia in the case of Goode & Goode (2006) FLC 93-286 (“Goode”) guides this Court’s approach when making interim decisions and interim orders in respect of parenting disputes. In paragraph 81 of that decision the Full Court states:
“In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and dispute between parents as to what constitutes the best interests of the child.”
Clearly, this matter is such a case. More specifically it raises the reality that the Court cannot fully determine issues of credit at an interim hearing as the evidence being presented by the parties has not, as yet, been tested by cross-examination. That said the Full Court made it clear that the legislative pathway must be followed. In other words, the relevant provisions of the Act, post the 2006 Shared Parenting amendments, must be followed.
There would appear to be considerable distrust and animosity between the parties and no doubt the history of this matter will be the subject of evidence and cross-examination at a final hearing should it be needed.
There is no issue of equal shared parental responsibility to determine in this interim decision. The current orders already provide for such. The dispute today is simply limited to the issue of [X]’s time with the husband and under what circumstances that time is to be spent. There is an allied issue in respect of [X] travelling overseas with either parent. That said, it does trigger a consideration of s.65DAA of the Act which requires the Court to consider whether the child’s best interests would be served by making an order that she spend equal time or, alternatively, substantial and significant time with each of her parents. Either outcome requires the Court to consider whether the child spending equal time or substantial and significant time in lieu with each of the parents would be in the best interests of the child and reasonably practicable given the circumstances.
It is noted that the husband is only seeking interim orders at this stage and, no doubt, he would describe the orders sought as being substantial and significant time. His principal application, of course, is for sole residence.
It is further noted that the Court is required, when considering issues of substantial and significant time, to consider the requirements of s.65DAA(3) and, as to the reasonable practicality issue, s.65DAA(5).
Returning to the Goode decision, at paragraph 82 the Full Court made it clear that before embarking on a consideration of the best interests principle the Court is required to identify the competing proposals of the parties, the issues in dispute, and any agreed or uncontested relevant facts. These have already been outlined above.
Primary considerations: s.60CC(2)
With respect to the primary considerations, s.60CC(2)(a) requires the Court to consider the benefit of the child having a meaningful relationship with both of the child’s parents. At this point let me note that “meaningful” does not mean “equal” but it clearly signifies that both parties should be involved with the child and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is the right of the child’s. Consequently, the Court will, in all likelihood, need to give some considerable weight to this factor at the final hearing should it be needed.
The Court is also required under s.60CC(2)(b) to consider the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence. There is no doubt at this stage that it would be in [X]’s best interests to develop a meaningful relationship not just with the wife but with the husband. That needs to be balanced in respect of protecting a child, such as [X], from any physical or psychological harm and the like.
There is an issue about the distances that exist between the parties’ respective residences yet that seems to have been a feature for many years now.
Additional considerations: s.60CC(3)
With respect to the additional considerations in s.60CC(3) the Court would simply note that any issues such as the views expressed by [X], the nature of the relationship between [X] and each of the parents, and the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between [X] and the other parent will be fleshed out in the fullness of time at a final hearing. The family report as recommended will be crucial in the Court reaching a decision that will finally determine these matters for the parties. Nevertheless, the Court notes at this stage that there is an issue about each party’s willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the other parent and, of course, the Court also has to consider issues such as the capacity of each of [X]’s parents to provide for her needs, the extent to which the child’s parents have fulfilled or failed to fulfil their responsibilities of parent, and the like. These are also issues that will be determined at the final hearing in the matter.
The Court also notes that it has to consider the likely effect of any changes to [X]’s circumstances. Clearly, at face value, some change is needed because the existing orders reflected the reality that the husband was going to live in Townsville and not in Sydney.
Conclusion
Having considered the respective applications and submissions in light of the available evidence and the relevant statutory principles, the Court is satisfied that it would be in [X]’s best interests to have some minor changes to the school term spend time arrangements.
Paragraph 4(a) of the existing order will be amended to read:
“4. Until further order, the said child spend time with the father as follows:
(a) Each alternate weekend from after school Friday to 5:00pm Sunday (extending to 5:00pm Monday in the case of a long weekend) with the first weekend to be at the commencement of the 2011 first school term.”
There will also be an addition of subparagraph 4(e) in the following terms:
“At such other times as the parties agree.”
As to the issue of overseas travel, there will be an order that, in the event that either party wishes to travel interstate or overseas with [X], then that party will provide the other party with reasonable notice of not less than 21 days of their intention to travel with [X] and such notice is to include a written itinerary of relevant plane, train and bus bookings and details of all accommodation to be utilised, including the telephone numbers and websites of the relevant hotels. The party seeking to travel will also provide to the other party a final itinerary within seven days of the proposed travel and shall provide details of travel insurance and confirmation that the child has been registered with the Australian Government ‘Smart Traveller’ website.
There will also be a notation in the Court’s orders that the balance of the husband’s Application in a Case, the substantive proceedings and the wife’s application for costs in respect of the now withdrawn contravention proceedings will be adjourned to the date that the Court had previously allocated, that is, 28 February 2011, at 9:30am.
There will be Orders of this Court reflecting these reasons. The Court reserves the right to settle these reasons.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 20 January 2011
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