Clinton and Jones
[2008] FMCAfam 266
•31 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLINTON & JONES | [2008] FMCAfam 266 |
| FAMILY LAW – Children. |
| Family Law Act1975 – ss.60CA, 60CC, 61DA, 65DA, 65DAA |
| Rice & Asplund [1979] FLC 78-904 |
| Applicant: | MS CLINTON |
| Respondent: | MR JONES |
| File number: | BRC3211 of 2007 |
| Judgment of: | Howard FM |
| Hearing date: | 4 December 2007 |
| Date of last submission: | 4 December 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 31 January 2008 |
REPRESENTATION
| The Applicant appeared on her own behalf. |
| The Respondent appeared on his own behalf. |
ORDERS
That N born in 1990 live with the father.
That N spend time with the mother as agreed between N and the mother. Furthermore, there shall also be communication between N and the mother as agreed between the child and the mother.
That A born in 1993 live with the mother.
That A spend time with and communicate with the father as follows:-
(a)
on each alternate weekend from after school on Friday until
6.00 p.m.Sunday;
(b)in order to facilitate the contact referred to in subparagraph (a) herein the father is to collect the child from school (being the G School). Furthermore, the mother is to collect the child from the father’s residence at D at 6.00 p.m. on the Sunday at the conclusion of the contact weekend;
(c)for one half of the school holiday periods at times agreed between the parties or failing agreement:-
(i)the second half in each odd numbered year;
(ii)the first half in each even numbered year.
(d)furthermore, A is permitted to end alternate weekend contact and holiday contact earlier if he expresses to the father the wish to do so, in which case the father must immediately notify the mother by telephone or text message to ensure A’s safe return to the mother’s residence;
(e)on Father’s Day from 6.00 p.m. on the day preceding Father’s Day (if this is not otherwise a contact weekend) until 6.00 p.m. on Father’s Day;
(f)by telephone:-
(i)as may be instigated by A, at all reasonable times;
(ii)as may be instigated by the father, on the week days when A is living with the mother (Monday to Friday) on up to three occasions per week provided that such calls are made before 7.30 p.m. in the evening;
(g)at such other times as may be requested by A.
If Mother’s Day should fall on a weekend when A is otherwise going to be visiting his father the contact for that weekend shall conclude at 6.00 p.m. on the day preceding Mother’s Day.
Other than in the case of any emergency, the parties are not to telephone A during the weekends when he is with the other party.
The father must not attend at the mother’s home or approach the mother at any other place other than upon the conditions that he give prior notice by telephone or text message and the mother has agreed to his attendance or approach.
The parties are to facilitate telephone calls by and to the children on Christmas Day, the children’s birthdays and the parties’ birthdays (unless there is to be physical time spent together between the children and the parties on those days as otherwise required by these Orders).
The parties are at liberty to attend the children’s schools on all organised occasions which parents usually attend (school concerts, sports days, awards nights, speech nights, parent/teacher interviews and the like) and for the purpose of collecting and delivering the children before and after contact, but not otherwise unless invited in writing by the schools.
The parties must notify each other as soon as practicable as to any serious accident or medical emergency concerning either of the children.
The parties shall authorise the children’s medical and health practitioners and the children’s schools to provide such reports to the other party as may reasonably be requested (at the expense of the party making such a request).
Pursuant to section 65DA(2) 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 these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Clinton & Jones is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC3211 of 2007
| MS CLINTON |
Applicant
And
| MR JONES |
Respondent
REASONS FOR JUDGMENT
Background
The Applicant mother is Ms Clinton. The mother was born on in 1959 and she is an assistant nurse.
The Respondent father is Mr Jones. The father was born on in 1958.
There has been prior litigation between the parties in the Family Court of Australia. Final orders were made by O’Reilly J on 14 September 2005. Those orders provided that the children, N born in 1990 and A born in 1993 reside with the mother. On 15 March 2007 the mother filed an Application to vary the earlier parenting orders.
At the outset the question to be decided is whether or not the earlier parenting orders should be varied.
In Rice & Asplund [1979] FLC 78-904 the Full Court of the Family Court decided that final parenting orders can be varied if it can be shown that there has been a change in circumstances of such a nature to warrant this serious step.
In this current matter N has ceased to reside with the mother. N expressed a wish to live with her father and she has been living with her father since her mother left the D area.
Prior to that time both the mother and father were living in the suburb of D, Queensland. Indeed, since mid January 2007 the mother and her new husband have been living at T, Queensland. On the evidence, this is approximately two and a half hours drive from D. Those two locations are basically at opposite ends of the city of Brisbane.
There is no issue in relation to N. The order in relation to N will be that she live with the father and have contact with the mother as agreed between N and the mother. Such contact is to be either by telephone or in person.
Having regard to the fact that the circumstances have changed substantially – namely that N has opted to live with her father rather than with her mother - I consider that this does represent a change in the circumstances sufficient to re-open the matter pursuant to Rice & Asplund.
A
A is currently aged 14 years. A was born in 1993. He currently resides with the mother at T. The mother seeks an order that he remain living with her and spends time with the father on alternate weekends.
The father seeks an order that A live with him and spend time with the mother.
The mother relies upon her Application filed 15 March 2007 and her Affidavit filed 15 March 2007. In addition, the mother relies upon the Affidavit of Mr C. The mother also relies on her further Affidavit filed 19 July 2007.
The father relies upon the Response filed 4 May 2007 and his Affidavit filed 4 May 2007.
Section 61DA and section 65DAA
In my view the presumption referred to in s.61DA(1) of the Family Law Act1975 will not apply in this case. The reason why the presumption does not apply is because of the provisions of s.61DA(2)(b) of the Act. In this regard I refer to and I accept the evidence contained in paragraph 12 of the Affidavit of the Applicant mother filed 15 March 2007. Accordingly there is no need to consider s.65DAA. The matter therefore has to be decided on the basis of the best interests of the child.
Best interests of the child
Section 60CA says that 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.
Section 60CC(2) sets out the two primary considerations as:-
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no question in this case that both parties recognise the benefit to A of having a meaningful relationship with both parents.
Having regard to the Affidavit material and having had the opportunity to listen to the witnesses give their evidence I am satisfied that A is not at any risk of physical or psychological harm. Whilst there was an altercation between A and Mr C at one stage – it seems that A was upset with Mr C and he (A) in fact punched Mr C. There was no evidence of any physical violence towards A.
I accept the evidence of Mr C and of the mother that A has settled down well at his new school, the G School. This is a private school. The fees to attend the school are $3,000.00 per year. Mr C and the Applicant mother have confirmed that they are prepared to continue to pay the private school fees for A to attend the G School.
I accept that if there have been any disagreements between A and Mr C in the past that those differences are now behind them and I accept that Mr C does have a good relationship with A.
As to the additional considerations noted in s.60CC(3) I will only refer to those subparagraphs that are relevant having regard to the evidence:-
a)Section 60CC(3)(a) - there is no evidence of any view expressed by A in relation to the question of where he should live or how much time he should spend with either parent;
b)Section 60CC(3)(b) – I accept that A has a good relationship with his father and with his mother as well as with Mr C (his stepfather);
c)Section 60CC(3)(c) – I accept that the mother is willing and able to facilitate and encourage a close and continuing relationship between the child and the father. I accept that the father also has the willingness and ability to facilitate and encourage a close and continuing relationship between A and A’s mother;
d)Section 60CC(3)(d) – if there was now to be a change in the child’s living arrangements it would mean that he would have to move schools again. The evidence, which I accept, is that he has settled in and made friends at the G School. I also accept that he is progressing well from an academic point of view at that school. I do not consider it would be in his best interests to change school again at this stage of his life;
e)Section 60CC3(e) – whilst it is somewhat difficult to organise the travel arrangements each fortnight between T and D I do not consider those difficulties insurmountable;
f)Section 60CC(3)(f) – I consider that both parents have the capacity to provide for the needs of the child including the emotional and intellectual needs;
g)Section 60CC(3)(j) – I refer to paragraph 14 herein in this regard;
h)Section 60CC(3)(m) – In relation to A I note that he will soon turn 15 years of age. At this point in time he does seem to be content to travel to spend time with his father. I note (and I accept) the evidence of the mother to the effect that A is attending Youth Group each Friday evening. The mother made it clear that A may wish to attend Youth Group every Friday evening. This would prevent A from travelling to see his father each alternate Friday. On balance, I think it is more important that A maintain a relationship with his father rather than attend Youth Group every week.
Having regard to A’s age I consider that it may well, in the not too distant future, become an issue that A has other plans and arrangements with friends, et cetera. It may well be that A does not want to travel across town to spend each alternate weekend with his father. Should this occur I am hopeful that the father and A can sort out between them alternative arrangements in the event that A is not able to visit the father on a given weekend.
Conclusion in relation to where A should live
Having listened to the parties give evidence and heard their submissions I have concluded that it is in A’s best interests if he remain attending the G School. He has settled well into that school, is achieving reasonably good marks with his study and has made new friends. I consider it would be unnecessarily disruptive to A to move schools again.
I am also satisfied that A is settled and stable in his mother’s household.
Accordingly, it is in A’s best interests if he remains living with his mother.
It is also essential that A continue to maintain his very good relationship with his father.
The father is to be congratulated for continuing to travel across town and maintain his relationship with A since the mother and Mr C moved from the D area.
Other matters
The mother has also made a submission concerning a variation to paragraph 10 of the earlier Orders made by O’Reilly J on 14 September 2005. I am satisfied that such a variation is in the best interests of the children (in particular of A). This is reflected in paragraph 7 of the Orders.
A will therefore live with the mother and spend time with the father on each alternate weekend. I do consider that it is in A’s best interests to have Friday and Saturday night with his father each alternate weekend.
I consider that it is appropriate for the father to collect A from school on each alternate Friday.
I also consider it appropriate for the mother to collect A at 6.00 p.m. on the Sunday from the father’s residence at D.
I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of Howard FM
Associate: J Witenden
Date: 31 January 2008
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