D and D
[2001] FMCAfam 86
•8 October 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
D & D [2001] FMCAfam 86
FAMILY LAW – children – contact changeover venue.
| Applicant: | C J D |
| Respondent: | L D |
| File No: | ZP 522 of 2000 |
| Delivered on: | 19 June 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 19 June 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor for the Applicant | Mr D appeared on his own behalf. |
| Address for the Applicant | Mr D |
| Solicitor Advocate for the Respondent | Mr McCaffrey |
| Solicitors for the Respondent | James McCaffrey & Associates PO Box 6383 |
ORDERS
That all existing Orders concerning the changeover place for contact are discharged.
That for the purpose of contact:
2.1The Mother shall deliver the children to the Father at the commencement of contact at Castle Towers Shopping Centre.
2.2That the Father shall return the children to the Mother at Castle Towers Shopping Centre at the conclusion of contact.
That all outstanding applications for parenting orders are dismissed.
IT IS ORDERED BY CONSENT
That the Father’s application for a Child Support Departure Order filed 13 November 2000 is dismissed.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA
ZP 522 of 2000
C J D
Applicant
And
L D
Respondent
REASONS FOR JUDGMENT (Ex Tempore)
The proceedings
These proceedings comprise an application for parenting orders. The proceedings concern the parties’ two children, T J D born 3 September 1989 and J C D born 30 July 1994.
The applications
C J D (the father) filed an amended application for final orders on
4 July 2000. That application was filed in the Family Court at Sydney. His application was transferred to the Family Court at Parramatta and on 1 August 2000 it was transferred to the Federal Magistrates Court. His application was consolidated with an application he subsequently filed for a Child Support Departure order. At the final hearing the parties with the valuable assistance of a children's representative were able to reach agreement on the parenting matters but for one issue. The outstanding parenting issue concerned the father's application to change the collection and return point for contact. The order sought by Mr D is that the contact changeover place should be Parramatta Railway Station.
L D (the mother) filed an amended response on 6 March 2001. She opposes the order sought by Mr D and seeks an order that the changeover place for contact is Castle Towers Shopping Centre.
Background facts
The father was born on 14 November 1955 in Pakistan. He is 45 years old. The mother was born on 6 August 1963 in India. She is 37 years old.
The parties married in India on 26 November 1988. They migrated to Australia in 1989. Separation occurred on 12 September 1992. A decree nisi was ordered on 7 December 1998, which decree became absolute on 8 January 1999.
There are two children of the marriage, T, born 3 September 1989 and J, born 30 July 1994.
Both children have lived with their mother since separation and had contact with their father.
These parties have been engaged in extensive litigation since their separation. Proceedings have been conducted in the Family Court at Sydney, the Family Court at Parramatta and more recently the Federal Magistrates Court at Parramatta. They have also been significantly in dispute in relation to child support and it would appear from the material that there have been a large number of reviews, perhaps also objections, dealt with by the child support agency.
On 13 March 2001 the parenting and child support matters were listed for hearing. The parenting matters were largely agreed and orders were entered by consent as follows:
"1.That the Order made by the Family Court of Australia on the 12 September 1996 be varied as follows:
(i)That the Applicant have contact with the children T J D born on the 3rd September 1989 and J C D born on the 30th July 1994 from 9am Saturday until 6pm Sunday on the last weekend of each month.
(ii)In the event that the work commitments of the Applicant allow, the contact referred to in Order 1(I) shall commence at 5pm on the Friday night.
(iii)The Applicant is to confirm the arrangements for the contact weekend by telephone to the Respondent on the Wednesday evening prior to the contact.
(iv)That the children be allowed to telephone the Applicant in accordance with their wishes.
(v)That the Applicant have contact with the children from 5pm on Christmas Eve until 3pm on Christmas Day for the year 2001 and each alternate year thereafter; and from 3pm on Christmas Day until 6pm on Boxing Day for the year 2002 and each alternate year thereafter.
(vi)For such of the school holidays as agreed provided the Applicant gives the Respondent two weeks notice of his proposal to exercise this contact.
(vii)In respect of Father’s Day contact shall be from 9am on the Saturday of the Father’s Day weekend until 6pm on the Sunday but shall only include the Friday evening if the work commitments of the Applicant allow.
(viii)Such other times as agreed.
(ix)That the Husband shall be entitled to reasonable telephone contact."
As a consequence of events that transpired during the hearing relating to the child support matter, on the application of the father I adjourned the child support proceedings part heard. I completed the evidence from the parties in relation to the contact changeover issue. I reserved my judgment in relation to the contact changeover issue pending the re-listing of the child support proceedings by the father or the expiration of three months.
The directions and orders made on 13 March 2001 were as follows:
"1.I grant the Applicant’s application for an adjournment.
2.I adjourn the proceedings part heard.
3.That the Applicant pay the Respondent’s costs of today assessed at $616.00 within twenty-eight (28) days.
4.That the Applicant have leave to re-list this matter for further hearing once the costs order included in these orders has been complied with.
5.That the matter be listed at a time and date to be fixed after twenty-eight (28) days, but not before costs have been paid in full.
6.In the event that the Applicant has not re-listed the matter for completion of this hearing within three (3) calendar months then his application for Departure of Child Support Administrative Assessment filed 13 November 2000 is dismissed.
7.I reserve my decision on the contact changeover issue pending further hearing or the expiration of three (3) months."
Three months has passed and at the request of the father received last week, I have listed the matter today for judgment.
The evidence
The father relied on the following evidence:
·His affidavits filed 13 November 2000, 15 February 2001 and 27 February 2001 and his oral testimony.
The mother relied on the following evidence:
·Her affidavit filed 6 March 2001 (paragraph 22).
·Her financial statement filed 6 March 2001.
The relevant law
Contact and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. [B and B: Family Law Reform Act (1997) FLC 92-755.]
Determining the best interests of the children
In this matter the relevant Section 68F(2) factors are few. Firstly and most obviously, the practical difficulty and expense associated with contact is obviously an issue. The nature of contact that is exercised by the father is, in essence, weekend contact that commences at 9am on a Saturday and concludes at 6pm on a Sunday. If the fathers work commitments permit, contact will include Friday evenings. Contact occurs on the last weekend of each month. The current orders make provision for holiday contact and other special occasions.
The father lives at Auburn and the mother lives at Castle Hill. The father proposes that the contact changeover place will be Parramatta Railway Station, as I have already indicated. Parramatta railway station is nearby to his home, some two or three stations from Auburn. The mother proposes Castle Hill at a shopping centre. This is some five minutes walk from her place.
At the present time contact is facilitated by the father travelling to Castle Hill where he collects the children. At page 25 of his affidavit filed 13 November 2000, the father identifies the costs associated with him collecting the children from Castle Hill. Including the children and a trip after to the city he pays $12.20 for each contact visit. By contrast with the costs he incurs he points out that as a person in receipt of a sole parent benefit the mother is able to travel at a reduced cost. She does not have a car and must use public transport. Her travel costs would be only $1.00 each way for herself, and I infer each of the children. The total cost would be $6.00 for the mother and the children. He submits that as a consequence she should meet the costs of bringing the children to and from Parramatta. Thus his costs will be limited to his travel to and from Parramatta and the costs of contact.
There is an attractive simplicity to the submission. What it ignores though, in my view, is the difficulties for a sole parent, living in circumstances where the provision of child support from the other parent is the subject of contention and compliance is problematic. The last payment of child support received from the father was $76.00 for February 2001. Small amounts of money can be influential in increasing hardship for a person who only has a small amount of money to live on. Although it will cost the father more to travel to and from Castle Hill from Parramatta than it would for the mother to attend to that journey, the reality is that the mother meets the majority of the costs of the children with little contribution by the father. She supports the children primarily by her welfare payments.
The costs identified by the father, and I accept his evidence of those costs, are costs that I'm satisfied he is able to afford. That his costs are greater than the mother’s does not tip the balance in favour of the order he proposes. The mother, at paragraph 23 of her affidavit, has listed the occasions of contact that have in fact been exercised by the respondent. She complains that his contact with the children has been less than ordered by the court and that there have been difficulties organising a routine for the children with the father.
This, in my view, is a matter that I also take into account in determining the venue for contact changeover. It is, in my view, unsettling and possibly distressing for children to arrive at a contact changeover point, having travelled some little distance to be there, only to have contact not take place or not take place to both children. If the father is late, if the father does not attend to take both of the children then the inconvenience to the children, and to a lesser extent their mother, of travelling to Castle Towers and waiting is less than travelling to Parramatta then waiting before returning back to Castle Hill.
I am satisfied on balance that I should make the orders sought by the mother in preference to the order made by the father. The trips that he will be required to make are trips that will take place regularly once a month and at the additional times available pursuant to the orders. On balance, I am satisfied that is the proper order to make in the circumstances.
Accordingly, I make the orders identified at the commencement of these reasons.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 9 July 2001
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