Denpak and Marsh

[2008] FamCA 1205

FAMILY COURT OF AUSTRALIA

DENPAK & MARSH [2008] FamCA 1205

FAMILY LAW – ORDERS – Application to vary

APPLICANT: Ms Denpak

RESPONDENT: Mr Marsh

INDEPENDENT CHILDREN’S LAWYER: Judith Cocks

FILE NUMBER: ADC 5514 of 2007

DATE DELIVERED: 26 August 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 26 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Legal Services Commission

COUNSEL FOR THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr McGinn

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Judith Cocks

Orders

1. That paragraph 3 of the order made by Justice Burr on 20 November 2007 be amended to read, “That handovers for the purpose of the children spending time with the father occur at the main entrance to Bunnings Warehouse at Main [P] where such handovers cannot take place at the school attended by the children.”

2. That all applications and responses filed in these proceedings from 24 October 2007 be dismissed and removed from the active pending cases list.

3. That the order appointing the Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Denpak & Marsh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5514 of 2007

MS DENPAK

Applicant

And

MR MARSH

Respondent

EX TEMPORE REASONS

1. This matter was listed before me today in anticipation of the father filing an amended response.  He has not done so.  Instead, he has filed an affidavit.  With the agreement of Ms Lewis, counsel for the mother, and Mr McGinn, counsel for the independent children's lawyer, I have allowed the matter to proceed regardless of there being no amended response before the court, but I need to revisit the background of this matter to put that into context.

2. Final orders were made on 21 June 2005.  On 24 October 2007 the wife instituted proceedings in this court seeking delivery up of the children.  The father responded on 31 October 2007, seeking substantial changes to the previous order; namely that he have, on a final orders basis, sole parental responsibility for the children, and orders that the children live with him and that the children spend such time with the mother as may be agreed or as ordered by the court.

3. I do not want to dwell on the circumstances that led to that application and that response.  The long and the short of it is that those circumstances are now part of history and the mother filed an application on 13 May 2008 seeking dismissal of both her application and the response filed by the father.

4. The matter was listed before Dawe J on 12 June 2008 for argument in relation to summary dismissal of the father's application and to hear argument as to the applicability of the principles emanating from the Full Court decision in Rice and Asplund.

5. The matter was adjourned to 21 July 2008 because the father sought to file documents in support of his case, he saying that there was still a sufficient change in circumstances to warrant further litigation.  That was separate to the circumstances that led to the proceedings in October.  That adjournment application was opposed, but her Honour granted the adjournment.

6. However, the father did not file any documents and the matter came before me on 9 July. I indicated that I proposed to dismiss the father's application, and indeed also the mother's application as sought by the mother, because there was simply no change of circumstances being alleged at all, let alone sufficient to relitigate the issue of the children.  Nevertheless, I gave the father one last opportunity to put appropriate documentation before this court and I adjourned the matter to today.  I also gave leave to the father to amend his response, setting out the orders that he now seeks, such that everyone, including me, could be clear as to what precisely were the issues that the father was raising and in respect of which he was arguing there was a sufficient change of circumstances to relitigate the matter.

7. To repeat, the father has not filed an amended response.  He has filed an affidavit, but the matter has proceeded today on the basis of that affidavit setting out the issues that the father wants to raise.

8. There are three issues raised by the father in his affidavit, and in summary they are as follows: firstly, a need, as he alleged, to change the place of handover; secondly, a need, as he alleged, to change the order insofar as it provided for the children to spend time with him; and, thirdly, a need as he alleged, to change the order in relation to Christmas school holidays.

9. In terms of the first issue, as I have recorded earlier, the mother, through her counsel, for the purpose of resolving that dispute, conceded that there is a sufficient change of circumstances to look again at the place of handover. On that basis one would have thought that it would have become a very simple issue as to where the place of handover should be, given the mother now has transport, which is the change of circumstances.  It was a matter of finding a convenient mid­point between the respective residences of the parties.  However, it did not prove to be as simple as I thought it might, and there was still a dispute between the parties as to where the handover should be.  I am now satisfied, upon being shown a map, that the midpoint between the residences of the parties is indeed where the father suggests, and that is at Bunnings at P.  Thus I propose to make an order varying the existing order to provide for the handover to take place at Bunnings where it cannot take place at the school.

10. The second issue is in relation to changing the days on which the children spend time with the father.  I have heard submissions about that and I am particularly swayed by the submissions of the Independent Children's Lawyer.  I do not consider that there is a sufficient change of circumstances established to justify reopening this matter.

11. The crucial issue for me is that the order of 21 June 2008 itself, in fact contemplated what the situation would be once the children commenced school, and that is the circumstance which the father relies on in raising this issue - namely, the children are now attending school and that impacts upon the time he has to spend with them - and he sought some weekend time.

12. If it was as straightforward as that, the father might have been more successful than he is going to be, because the father, for reasons known only to himself, has taken the opportunity to seek to increase the time that he spends with the children.  However, there is no justification in terms of any significant, or indeed any, change of circumstances which would require that issue to be relitigated.  The only change of circumstances which the father is able to point to is the fact that the children are now attending school but, as I say, the order of 21 June 2008 contemplated that and therefore, in my view, there is no change of circumstance which warrants a relitigation of that issue.

13. The third issue was in relation to seeking to change the order insofar as it dealt with Christmas school holidays.  The order provides for the parties to alternate between the first and second half of the Christmas school holidays.  As I understand the father's submission to me, he says that that should be changed such that he always has the first half of that school holiday period.  He has set out some reasons in his affidavit.  However, again, I have heard submissions about that and I find that there is no change of circumstance, let alone a significant and substantial change of circumstance, which would require that issue to be relitigated.

14. Therefore, I propose to dismiss the father's response and, along with it, the mother's application, as she seeks.  I propose, though, to make an order varying the handover point.

15. The relevant paragraph, being paragraph 7, of the orders made on 21 June 2005, had in fact already been amended once, and that was done by Burr J in his order of 20 November 2007.  Thus in terms of the order I make, I propose to vary his Honour's order.

I certify that the preceding 15 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 26 August 2008.

Associate