D & M
[2005] FMCAfam 89
•21 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & M | [2005] FMCAfam 89 |
| FAMILY LAW – Children – change to contact arrangements – changeover point. |
Rice v Asplund (1979) FLC 90-725
| Applicant: | ND |
| Respondent: | JM |
| File No: | PAM 4935 of 2004 |
| Delivered on: | 21 February 2005 |
| Delivered at: | Parramatta |
| Hearing date: | 21 February 2005 |
| Judgment of: | Emmett FM |
REPRESENTATION
| The Applicant in person |
| The Respondent in person |
ORDERS
Orders 5, 5(a) and 5(b) of Orders made 27 October 2003 are discharged.
The Respondent Father is to have contact each alternate weekend from 9am Saturday to 5pm Sunday commencing 26 February 2005.
The Respondent Father is to collect the child for contact at C Railway Station on Saturday at 9am unless the Respondent Father otherwise notifies the Applicant Mother by 12pm Friday as to a later collection time on Saturday.
In the event that the Respondent Father notifies the Applicant Mother in writing that he agrees to changeover in respect of contact taking place at B Railway Station at an agreed time on Saturday, or otherwise 9am, and changeover at the end of contact on Sunday at 5pm, then changeover shall occur forthwith at B Railway Station.
Notation: That the Respondent Father’s parents may collect or deliver the child either with or without the Respondent Father.
Notation: that in the event the Respondent Father gives the Applicant Mother no less than 24 hours notice, the Respondent Father may have contact with the child from 6pm to 7.30pm on a Wednesday night on condition that contact take place in the C area. Unless otherwise agreed, changeover is to be at C Railway Station.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM4935 of 2004
| ND |
Applicant
And
| JM |
Respondent
REASONS FOR JUDGMENT
The Application
Application is made by the Applicant Mother that Orders made by consent on 27 October 2003 be varied in respect of the child MM (“the Child”) to delete Orders 5(a) and (b), which provide for 2 weekly contact periods totaling 3½ hours, and to substitute each alternate weekend from 9am Saturday to 5pm Sunday and to delete the Order providing for changeover at McDonalds Restaurant E and to substitute changeover at B, or, that each parent share pickup and delivery of the child from C.
The Respondent Father opposes the variation with respect to the deletion of Wednesday night contact and the point of changeover being other then the current point of changeover but otherwise consents to the variation in respect of alternate weekend contact.
The evidence
The Applicant Mother relies on her Affidavit sworn 29 November 2004 in which she deposes that since moving to C, instead of it being a matter of minutes to the point of changeover, that the drive between her home to that of the current changeover takes her almost an hour.
The Applicant Mother also states that the Respondent Father does not regularly cook a meal for or bathe the Child on the Wednesday night contact visits as a result of which, on the drive home, the Child is asleep and restless.
The Applicant Mother works each second weekend at A and submits that the Respondent Father has access to his parent’s car and that indeed he has collected the Child in that car from C for the purpose of access on a prior occasion.
The Respondent Father relies on his Affidavit sworn 24 February 2005 in which he states that he does not own a car and that the present changeover allows him to walk or rely on his parents to assist him in collecting the Child.
The Respondent Father presently pays $125 a week in maintenance and opposes strongly any variation involving a different changeover. The Respondent Father has refused to nominate a halfway point for changeover. Further he states that neither he nor his parents will travel to the halfway point suggested by the Applicant Mother of B, for changeover to occur, nor will they travel to collect the Child at the commencement of contact or deliver the Child back to her mother at the conclusion of contact.
Wednesday night contact
In dealing first with the Applicant Mother’s Application for the variation of contact to discharge the Order for 1.5 hours on Wednesday night, I have regard to the fact that for the Child to have this hour and a half’s weekly contact involves her in 2 hours travelling in circumstances where she does not arrive home much before 8.30pm. The Child is not yet 3 years of age.
When the Orders that provided for contact on Wednesday nights were made, they also provided for Saturday contact only from 9am to 12pm. The parties have now agreed that the Respondent Father is to have full overnight alternate weekend contact.
In considering what Order is in the best interest of the Child I am mindful that whilst she will lose the benefit of the opportunity of the greater frequency of weekly contact with her father, albeit for a much shorter duration, she will now have the benefit of a full weekend with her father each alternate weekend including overnight.
It concerns me greatly that a Child who is not yet 3 years of age is spending each Wednesday night traveling 2 hours for an hour and a half’s contact with her father.
However, were the Respondent Father prepared to travel to C on Wednesday evenings for contact with the Child, between the hours currently specified, there may be good reason why that Order should be preserved on condition that contact take place in the C area.
However, the Respondent Father was uncooperative in seeking to explore various possibilities and was adamant that under no circumstances would he or his parents travel to C for contact with the Child.
Generally for variations in Orders to be made some changed circumstance which will justify such a serious step is required. As Evatt CJ said in the matter of Rice v Asplund (1979) FLC 90-725, it is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of a child would best be served. These principles apply whether the original Order is made by consent or after a contested hearing. The Court in Rice v Asplund, further stated that:
“…the possible advantages or disadvantages in a change of custody need consideration along with all the other usual factors…The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes.”
The welfare of the Child is the paramount consideration and I am seriously troubled by the Respondent Father’s lack of ability to appreciate the difficulty for the Child to spend 2 hours a week traveling for a midweek contact period of just one and a half hours contact.
In those circumstances, I am satisfied it is in the Child’s best interests that the Order made on 27 October 2003, providing for Wednesday evening contact between 6 and 7.30pm with changeovers to occur at McDonalds E, be discharged.
Changeover for contact
In respect of the Applicant Mother’s Application for a change to the point of contact, I have regard to the fact that the Applicant Mother has parents in the area where the Respondent Father lives which both she and the Child see with some regularity. In fact, it would appear that this Child is fortunate enough to enjoy meaningful relationships with both her grandparents and for this she is indeed fortunate. However, there is no need to tie the Child’s contact visits with her father to that of her grandparents. Indeed independence of contact enables the Child to enjoy fully her contact with her father and her grandparents without contact with one always being contingent with contact with the other.
The distance between the parties is not insurmountable for either party. The Respondent Father concedes that there is a railway line available to him to travel to B. The Respondent Father has stated before me this morning that, in the event I was to order that changeover occur at B, he will not travel there nor will he consider sharing either the pick up or delivery of the Child.
I find this attitude completely ignores his responsibility to his daughter to enable her to have contact with him and to foster her right to be cared for by him. It is not overly onerous to expect a parent who does not drive to travel by public transport the sort of distance that is involved in the father traveling from E to B.
I understand it was obviously more convenient for the Respondent Father, prior to the Applicant Mother moving, however I do have regard to the fact that there is a history to these parties relationship that involves Apprehended Domestic Violence Orders against the Respondent Father, as a result of which, the Applicant Mother has not disclosed her residential address.
It is very sad for the Child that her parents are unable to agree to changeovers, having otherwise been able to agree on alternate weekend contact. Neither appears prepared to put themselves out. It is a mechanical matter that requires consideration and give and take on both sides.
I have regard to the fact that the Respondent Father has refused to make submissions as to whether or not he has a preference for changeover at B or sharing pick up and return and has stated categorically that he will not, at this point in time, agree to travel any further distance than he already does.
Accordingly, in order to save the Child traveling needlessly to B and suffering the disappointment in the event that her father does not appear, I intend to order that the Respondent Father collect the Child at the commencement of contact at L at C on Saturday at 9am, unless the Respondent Father otherwise notifies the Applicant mother before midday Friday as to a later collection time on Saturday morning. The Applicant Mother is to collect the Child from the Respondent Father’s place of residence at the conclusion of contact at 5pm on each contact Sunday.
In the event that the Child has not been collected by 12pm Saturday morning and there has been no communication by the Respondent Father to the Applicant Mother that he is otherwise delayed, then contact for that weekend shall be suspended.
In the event that the Respondent Father notifies the Applicant Mother in writing that he is prepared to agree to changeover at B at an agreed time on Saturday morning and to also agree to changeover on Sunday at 5pm, then changeover shall forthwith occur in accordance with the Respondent Father’s written notice.
Weekend contact shall otherwise commence this weekend Saturday
26 February 2005 at 9am.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 1 March 2005
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