Depit and Depit (No 2)

[2010] FamCA 279

FAMILY COURT OF AUSTRALIA

DEPIT & DEPIT (NO. 2) [2010] FamCA 279

FAMILY LAW  -  CHILDREN  -  relocation  -  injunction sought re school  -  leave to withdraw contravention application

Family Law Act 1975 (Cth)

FATHER: Mr Depit

MOTHER: Ms Depit

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2088 of 2007

DATE DELIVERED: 12 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 12 April 2010

REPRESENTATION

SOLICITOR FOR THE MOTHER:

Ms. Crane

BL Crane & Associates

THE FATHER: In person

INDEPENDENT CHILDREN’S LAWYER

Ms Forster

Forster & Associates

Orders

1. That all previous parenting orders and injunctions (not including any orders for child support) relating to K born … July, 1994 (“the child”) be discharged. 

2. That the father and mother have equal shared parental responsibility for the child. 

3. That the child live with the father as follows :

   (a)in New South Wales :

   (i)on one occasion in each school term from after school on Friday until the commencement of school on the following Tuesday morning on the following terms :

   (ii)the dates for these periods be determined by the father in consultation with the child in the first week of each school term;

   (iii)the father to notify the mother in writing of the intended visit to New South Wales by the commencement of the second week of each school term;

   (iv)the father to arrange suitable accommodation at his cost;  and

   (v)the father be solely responsible for his travel costs;    

   (b)in Victoria :

   (i)in the first and third term holidays for a period of ten days commencing on the last day of the school term;

   (ii)in the second term holidays from the last day of school to the last Friday of the holiday period save that in 2010 the holiday shall commence on the last day of the school term and conclude on the day prior to the commencement of the third term;

   (iii)during the long summer vacation and subject to paragraph (iv) herein, from the last day of the school term until the day prior to the commencement of the school term in the following year;  and

   (iv)the child shall spend from 20 December until 29 December with the mother save that in 2010 she shall spend fourteen days with the mother, to be nominated by the mother at the beginning or end of the holidays, and the mother is to give written notice to the father of her travel plans by 30 September;

   (c)at such other times as may be agreed between the parties. 

4. That the child live with the mother at all other times. 

5. That the father be responsible for booking and paying for the child’s travel costs referred to in paragraphs (3)(b)(i), (ii) and (iii) hereof.

6. That the mother be responsible for booking and paying for the child’s travel costs referred to in paragraph (3)(b)(iv) hereof.

7. That the father be at liberty to attend all school and sporting functions in which the child is involved. 

8. That the child support agreement dated 15 August, 2001 and Annexure A thereto be varied to provide that so long as the child attends T School on the New South Wales north coast or other school in that area the father and mother will equally share responsibility for the child’s school fees until she completes schooling in Year 12 and otherwise the child support agreement dated 15 August, 2001 and Annexure A thereto be extended until November 2012. 

9. That the father return to the mother the child’s passport by 30 July, 2010 and thereafter the mother hold that passport for the child, subject to the following conditions :

   (a)the child will not travel using the passport without the express written consent of the other parent;

   (b)upon the request of either parent to travel overseas with the child, the other/non-travelling parent shall not unreasonably withhold such written consent; however, any proposal for the child’s travel must be provided to the other/non-travelling parent with at least 28 days prior notice, and such travel shall not decrease the amount of time the child spends with the other/non-travelling parent pursuant to these orders, unless by consent. 

10. That the appointment of the independent children’s lawyer be discharged forthwith. 

11. That the father have leave to withdraw the contravention application filed by him on 11 February, 2010. 

12. That the trial date of 17 May, 2010 be vacated. 

13. That the order for the preparation of a family report be discharged. 

14. That all extant applications be otherwise dismissed.

15. That these proceedings be removed from the List of matters awaiting finalisation.

16. That pursuant to s.62B and s.65DA(2), 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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

17. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

18. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

AND IT IS NOTED

A.The father will give consideration to the child’s sporting commitments and intends to arrange suitable alternative times with her if necessary. 

B. The father is contemplating travel overseas with the child in July 2010.

C. The mother is contemplating travel overseas with the child in December 2010. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2088 of 2007

MR DEPIT

Father

And

MS DEPIT

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The history of this case is set out in an earlier ruling.  At the outset I would like to commend the solicitor for the mother, who came into the matter after the initial hearings and has acted in a most professional way.  I also put on the record the court’s gratitude to the independent children’s lawyer.  In a sensitive and complex case, her focus has always been on the best interests of K, which she is appointed to represent, and she has acted with consummate skill and professionalism. 

2. There is some evidence of complaints made by the parties to various professional bodies.  If complaints are pressed, those bodies will investigate them and, if considered relevant, can have access to this and earlier judgments of the court.

3. After some days of negotiations the parties have resolved most outstanding issues.  They have agreed they will have equal shared parental responsibility for K, who will be sixteen in July.  Orders will provide for K to remain living at H in the New South Wales north coast area, to which she moved in late January this year, and to see her father in that area, and in Victoria, where he and other family members live. 

4. The father has made clear that this is a compromise; by its nature, it has involved him agreeing to an outcome other than that which he saw as optimum.  No doubt the mother is in a similar position. This is the nature of compromises. 

5. K was enrolled at T School when she moved to H.  She is in year ten and the evidence is that she is happy and settled there.  It is her intention, and that of her mother, that she remain at T School for the balance of her secondary education.  The parties have agreed that so long as K lives in the north coast area, her parents will share the cost of her school fees.  Prior to the move the father was solely responsible for them.  I do not suggest the mother did not made contributions to her education and sporting expenses;  the evidence is to the contrary.  But responsibility for the payment of the school fees rested with the father. 

6. The mother has agreed to pay half of K’s school fees.  In part, that involves a recognition of the costs the father will incur to see K in New South Wales and in Victoria. 

7. The mother seeks an injunction which would require K to attend T School unless otherwise agreed by her parents.  In the absence of an agreement to such an order, I do not propose to do so.  Orders to similar effect were made in 2001 in relation to a school in D in Victoria and were subsequently ignored. 

8. K’s parents have equal shared parental responsibility for her.  That requires them to discuss and agree on important issues, including her education.  It is to be hoped communication will improve between them but each, in the course of the various hearings, has expressed views about the difficulties they experience in this respect.  Each attributes responsibility for that to the other. 

9. The effect of the parties’ agreement about school fees can be implemented without making an injunction as sought by the mother.  An order can provide that the Child Support Agreement made on 15 August, 2001 and annexure “A” to that agreement be varied to provide that so long as K attends T School on the New South Wales north coast or other school in that area, the father and mother will equally share responsibility for her school fees until she completes schooling in year twelve.  Each of the parties have confirmed that that is consistent with his and her understanding of the compromise reached.  The independent children’s lawyer is content for an order to be made in those terms. 

10. I make it clear that it is anticipated that K will stay at T School so long as she is in the north coast area.  An order in the terms foreshadowed would allow her to move to another school if that were necessary.  I do not suggest that K is likely to be asked to leave that school, although cases have arisen in this jurisdiction where that is the case and the child has to be enrolled at another school.  But a child may need to change schools to pursue particular subjects or academic interests.  So long as K remains living in the north coast area, her parents will share her school fees.

11. The only other outstanding issue relates to the contravention application filed by the father on 11 February, 2010.  The mother seeks an order that it be dismissed; the father seeks leave to withdraw it. It is probable this is an academic argument. As a matter of law, there is nothing to stop further contravention applications being filed alleging breaches of the orders made in 2001 and 2009, to which that contravention application relates.  In saying that I do not encourage the father to take that course; contraventions are blunt instruments to achieve constructive outcomes for children.  However, a party is entitled to bring an application if an order is contravened and the father or mother could do that in the future. 

12. Further, an order dismissing a contravention application, absent a hearing on the merits, would not act as an estoppel against subsequent proceedings. 

13. The contravention application was filed by the father.  He seeks leave to withdraw it.  I act on the basis the mother opposes the granting of that leave.  Her solicitor has made a number of submissions on this issue, to which I have regard.  Nevertheless, I am satisfied the father should have leave to withdraw the contravention application. 

I certify that the preceding
paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2010.

…………………………………………
Associate.