Emson & Makin (No 2)
[2022] FedCFamC1F 946
Federal Circuit and Family Court of Australia
(DIVISION 1)
Emson & Makin (No 2) [2022] FedCFamC1F 946
File number(s): NCC 212 of 2018 Judgment of: SMITH J Date of judgment: 18 November 2022 Catchwords: FAMILY LAW – Changeover – Where the nominated supervision centre cannot facilitate changeover on Christmas Day – Where the father seeks an alternative service – Where the availability of that service is not certain – Where the children’s time with the father on Christmas Day is contingent on the availability of the alternate contact service. Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 18 November 2022 Place: Newcastle by Microsoft Teams Solicitor for the Applicant Litigant in person Solicitor for the Respondent Mullane & Lindsay Solicitor for the Independent Children's Lawyer Legal Aid NSW Newcastle Family Law ORDERS
NCC 212 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EMSON
Applicant
AND: MS MAKIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
18 NOVEMBER 2022
THE COURT ORDERS THAT:
1.This Order is to be read together with the extant Orders.
2.This Order varies the extant Orders only in respect of Christmas Day 2022 and Christmas Day 2023.
Christmas Day 2022
3.On Christmas Day in 2022, changeovers for all three children shall take place using Supervision Service B, at Handover Location C, with the mother delivering the children to the Service, and, unless otherwise agreed, the mother will collect the children from the father using Supervision Service B at a location that Supervision Service B directs (these services may include, “[Handover Location R]”, City E; “[Handover Location S]”, “[Handover Location T]”), with the cost of the supervised changeovers to be borne equally between the parents.
4.For the avoidance of doubt, if Supervision Service B is not able to facilitate the changeovers, then the children will not spend time with the father on Christmas Day in 2022.
Christmas Day 2023
5.On Christmas Day in 2023, changeovers for all three children shall take place using Supervision Service B, at Handover Location C, with the mother delivering the children to the Service, and, unless otherwise agreed, the mother will collect the children from the father using Supervision Service B at a location that Supervision Service B directs (these services may include, “[Handover Location R]”, City E; “[Handover Location S]”, “[Handover Location T]”), with the cost of the supervised changeovers to be borne equally between the parents.
6.For the avoidance of doubt, if the Supervision Service is not able to facilitate the changeovers, then the children will not spend time with the father on Christmas Day in 2023.
Notations:
A.The extant Orders require facilitated change over on Christmas Day for Christmas Day 2022 and 2023.
B.The Nominated Changeover service is unavailable on Christmas Day.
C.The father sought an alteration of the orders to a direct change over if no service is available. That is not appropriate where the Orders require the use of a change-over service.
D.In the alternative the father proposed a different service provider, who he says has indicated they may be available to assist on Christmas Day.
E.The mother did not oppose the substitution of a different change over service to give effect to the intention of the extant Orders.
F.However, if Supervision Service B is unable to facilitate the change overs on Christmas Day 2022 or 2023 then the children will not spend time with the father on those days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Emson & Makin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
Smith J
This matter is about a proposed variation of final orders because a particular contact service is not available.
The father filed an Application in a Proceeding and an Affidavit on 16 November 2022.
The father is self-represented. The mother is represented. The Independent Children’s Lawyer has appeared, and the court thanks the ICL for appearing.
This matter resolved on a final basis. The orders of 20 September 2021, as amended under the slip rule on 18 November 2021, together with certain consent orders of 17 October 2022, resolve the matter. There was a final hearing and a decision of Cleary J, and an appeal which was dismissed.
The issue that comes before me today is that, for the next two years, the children are to spend time with the father pursuant to the orders which require a change-over service and which nominate a particular changeover service. After that, a changeover service is not required.
The changeover service which is nominated, Supervision Service V at City U, is unavailable on Christmas Day. That means that the orders cannot be given effect for Christmas Day 2022 and Christmas Day 2023.
The father seeks firstly that the Court dispense with the orders requiring a change-over service. That is opposed. That is an argument he lost previously. I cannot and will not vary substantive final orders in these circumstances.
In the alternative he seeks an amendment to allow a different supervision service, being Supervision Service B, to facilitate the changeover. He says they have said they may be available to assist on Christmas Day.
There is no strong opposition to that change being made by either the ICL or the mother, who both quite fairly accept that so long as there is a recognised independent change-over supervision service then it gives effect to the intent of the orders. In my view, that is a machinery provision amendment which I have power to make.
The father’s proposal assumes that he can, in fact, persuade someone from Supervision Service B to work on Christmas Day. If he can, then I consider it appropriate that the orders be varied in this way so that they can be given their intended effect.
Of course, if Supervision Service B does not operate on Christmas Day, or doesn’t have one of their staff members who is willing to work on Christmas Day, which is a real possibility, then as I have said it is not appropriate to require the change-over to go ahead anyway, and unfortunately the children’s time on these two Christmas Days will not be able to go ahead.
Those are my reasons.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 7 December 2022
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