Dhupam and Keyush
[2009] FamCA 208
•18 February 2009
FAMILY COURT OF AUSTRALIA
| DHUPAM & KEYUSH | [2009] FamCA 208 |
| FAMILY LAW – CHILDREN – Best interests – PROCEDURE – Variation of primary orders under s 70NBA – Whether order for time spent with one parent may be spent with other persons – Whether protection of children from physical or psychological harm extends to sickness incurred from interstate travel |
| Family Law Act 1975 (Cth) |
| Miller & Harrington [2008] FamCAFC 150 Yard & Rodd (No.2) [2008] FamCA 1173 |
| APPLICANT: | Mr Dhupam |
| RESPONDENT: | Ms Keyush |
| FILE NUMBER: | CAC | 1684 | of | 2007 |
| DATE DELIVERED: | 18 February 2009 |
| PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 18 February 2009 |
REPRESENTATION
| COUNSEL & SOLICITOR FOR THE APPLICANT: | Mr Farrar |
| COUNSEL FOR THE RESPONDENT: | Ms Godtschalk |
| SOLICITOR FOR THE RESPONDENT: | Ms Szczepanek |
Orders
IT IS ORDERED THAT:
The primary parenting orders made by me on the 19th of August 2008, subsequently amended by me on the 24th of November 2008 and the 11th of December 2008, are hereby discharged.
The Minute of Orders sought by consent by the parties, initialled and dated hereto by me, are given effect, save for the following amendment to Consent Order 12(d), which shall now include the words “before such expense(s) have been incurred” at the end of that sentence ending in the words “such expense or expenses.”
IT IS NOTED that the publication of this judgment under the pseudonym Dhupam & Keyush is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1684 of 2007
| MR DHUPAM |
Applicant
And
| MS KEYUSH |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings before me today have a somewhat unusual history in that they arose out of the desire on the part of both parties at one point and, more recently on the part of the mother, to vary orders that were made after a final hearing that occurred in the middle of 2008. The proceedings themselves grew out of an application by the father that the mother be dealt with for contravention without reasonable excuse of those orders to which I have previously referred.
As a consequence, under the terms of s 70NBA of the Family Law Act 1975 (Cth), the Court is empowered to make orders varying previous primary orders. It is unnecessary as events have occurred for me to investigate in any depth the extent and nature of the orders that might be made pursuant to s 70NBA. Suffice it to say that it would appear the section was originally incorporated into the legislation to enable changes to the orders without necessarily permitting or encouraging the parties to seek a fundamental reconsideration of the matters that underlay the original orders when they were originally made.
Difficulties in implementing previous orders
The existing application by the mother and the foreshadowed application by the father in his affidavit of 4 December 2008 were primarily some procedural mechanical matters which have proved to be difficult to implement. However there are obviously more fundamental questions about the time that the children would spend with each parent and, in particular, the concern on the part of the mother (although not her exclusive concern) that the children should spend the time that they were nominated to spend with the father with the father himself and not with members of his family or some other person.
The matter came before me today on the basis that the parties would identify what orders they were respectively seeking and I would then make directions which would permit the matter to proceed on a defended basis at some point in the future.
This morning Ms Godtschalk, on behalf of the father, announced that he did not seek a variation from the orders that have been varied by consent twice since they have been formally made earlier in the year 2008.
That left for determination potentially the application of the principles associated with the decision in Rice & Asplund[1] and the subsequent consideration of those principles by his Honour Warnick J in the matter of SPS & PLS,[2] as well as by the Full Court subsequently in their consideration of the matter of Miller & Harrington.[3] I will not reiterate their Honours’ consideration of those matters, nor my summary of them in the more recent decision in Yard & Rodd (No.2),[4] but suffice it to say that there is obviously an advantage for the children in not having their parents involved in serial or continuous, or perhaps continuously serial litigation.
[1] Rice & Asplund [1979] FLC 90-725.
[2] SPS & PLS [2008] FLC 93-363.
[3] Miller & Harrington [2008] FamCAFC 150.
[4] Yard & Rodd (No.2) [2008] FamCA 1173.
In the circumstances, I invited Mr Farrar, on behalf of the mother, to identify the matters that he said remained in issue between the parties. It transpired that after negotiations most of these matters were capable of resolution. In saying that I pay my respects to the fact that the parents were prepared in the interests of avoiding further litigation (which would not necessarily be in the best interests of the children) to effect some compromises and to move in each case towards the other parent's position in part to provide agreement.
However, there was still two matters outstanding at the end not capable of being resolved by the parents, it was agreed that in accordance with the powers given to this Court under the 1 July 2006 amendments to the Act, that I could make a discrete determination about those matters and it was in the interests of the parties and the children that I should do so today.
The resolution of these matters would cause the orders be amended a third time and to incorporate the determination on the two matters that remained in dispute and thereafter to become final matters. All other applications by the parties before this Court would be terminated and removed from the pending cases inventory.
Interstate travel of the parties and time spent between the children and persons other than the father
Two matters remaining for determination appear to be these. First, in the past it has been asserted the father has travelled with the children interstate on weekends that the children are spending with him, and that he has, because of his work commitments, returned to Canberra with them early on Monday morning. It was suggested by the mother in her affidavits that this had the double effect of leaving the children tired and also that the child S becomes ill.
The extent, cause and consequences of S’s illness have been a matter of controversy and that controversy was not resolved in these proceedings nor could it be on the evidence that I have before me, notwithstanding that each of the parents is a medical practitioner.
It is suggested by the father in relation to this matter that the issue could be resolved substantially by a reciprocal injunction against both parties travelling with the children on Monday mornings on which they would ordinarily be obliged to attend school. This takes account of his allegations which were that it was not only he who subjected the children to these difficulties, but also the mother. That part of the changes to the orders is a matter of agreement.
However, what is not in agreement bears upon the other issue before me for determination. The question is whether in the circumstances where the children and the father are interstate and the father is obliged to travel interstate for work on the Sunday evening the children should/could be returned to Canberra to spend Sunday night in their father's house in the company with the either the father's partner or with the paternal grandmother.
The mother's position in relation to this matter is that the time that the children have with their father is intended to be time that they have with their father and not with members of the father's family. Mr Farrar, for the mother in making this particular submission might have said that the wording of the Act and of the orders in this matter would encourage the view that this is the intention of the legislature and that time, if it is to be with a parent, should be with the parent not another person or persons.
In this regard, I do not accept that is the case nor that it is reasonable in modern life that parents should be in a situation where it is their time exclusively that the children spend with them. Moreover, in the hope if not expectation that these orders may remain permanent or at least relatively final, the circumstances of both parents are likely to change substantially over the time of the children's minority and it is probable that during periods when the children are with either parent there will be times where other people will be involved in their lives. Indeed, the Act itself recognises as one of the factors to be taken into account in determining the children's best interests that there are other people who will be important to the lives of the children and those peoples’ relationship with the children is properly brought into account.
Although I accept that there is no evidence before me at the present time, (in this case) these would include both grandparents and any partner of either parent in the future. I do not accept that notwithstanding the wording that is employed by the legislature in describing the allocation of the time that the children spend with either parent that this must necessarily be confined to a parent.
Accordingly, in relation to the question of the children's being interstate with their father on a Sunday evening, it seems to me, that it is reasonable (on the assumption that it is not a common occurrence) that they could be returned to their father's house in Canberra which would overcome the travelling problem which was the primary consideration, in my opinion, in the mother's affidavit and a reasonable one relating to their best interests.
This is particularly so in accordance with the prescriptions that I am obliged to apply under the Act to ensure that they are not subjected to, and are protected from, any physical harm, which would include sickness induced by the arrangements that the parents might have entered into.
Consequently, I propose to resolve the first of the matters between the parties in accordance with the proposition put forward by the children's father, namely, that there should be mutual restraint upon the parties travelling with the children on Monday mornings on which they ordinarily attend school. I do not impose any further restraint in relation to the time that the children might otherwise spend with a member of the father's family or a person with whom he has an immediate and close relationship on the Sunday night.
Implicit in that determination is the equal applicability of my reasoning to the resolution of the other matter relating to whether on Wednesday nights when the father is interstate for the purposes of his employment, the children might spend that time with either his partner or his mother. I do not propose to repeat what I have just said but simply to say that, in my opinion, it is appropriate that that should be so, subject to its not exceeding four times in any calendar year.
Conclusion and appropriate orders
Those are the determinations I make and the orders that I make will follow that wording.
I note that those orders will be collected by Mr Farrar and presented to me for final signature and issue from the Court. I indicate that as this was a parenting order I have taken account of the fact that such orders have been made in the best interests of the children and not in the interests of the parents. I believe that that is so. I have taken account of the primary consideration set out in section 60CC(2) of the Act which relate to the benefit of the children in having a meaningful relationship with both of the children's parents and I note that some of my determinations relate to their having a relationship, at least in part, with other persons.
I am also conscious of the fact that I have a need to protect the children from physical or psychological harm, and I have taken account of the nature of the relationship of the children with each of their parents and with other people relevant to their well-being including terms of section 60CC(3)(b)(ii) other persons including the grandparents or other relatives of the child. I have taken account of the fact that the parents have exercised significant parental responsibility in trying to agreement about matters that are in dispute between them today without causing the children to be exposed to further litigation and/or any intervention by this Court.
I note that in doing so they have fulfilled the obligation which is contained in s 60CC(3)(l); that it is preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children.
I direct that the matter be matter be removed from the pending case inventory.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.
Associate:
Date: 25 March 2009
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