England & Harrisson (No 2)
[2022] FedCFamC1F 350
•17 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
England & Harrisson (No 2) [2022] FedCFamC1F 350
File number(s): SYC 5095 of 2020 Judgment of: ALDRIDGE J Date of judgment: 17 May 2022 Catchwords: FAMILY LAW – PARENTING – Application in a Proceeding – Where the father seeks a variation of the final parenting orders pursuant to the slip rule – Father’s video communication time with the child – Final parenting orders reflect Court’s intention as explained in the reasons for judgment – Application dismissed – Father to pay the mother’s costs in a fixed sum. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 Cases cited: Burrell v The Queen (2008) 238 CLR 218
England & Harrison [2021] FedCFamC1F 317
Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 17 May 2022 Place: Sydney (via video link) Solicitor for the Applicant: Holmes Donnelly & Co Counsel for the Respondent: Mr Mathews Solicitor for the Respondent: Tiyce & Lawyers ORDERS
SYC 5095 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ENGLAND
Applicant
AND: MR HARRISSON
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
17 MAY 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 27 April 2022 is dismissed.
2.The father pay the mother’s costs fixed in the sum of $1,100.
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 the pseudonym England & Harrison (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
On 27 April 2022, Mr Harrisson (“the father”) filed an Application in a Proceeding seeking the variation of final parenting orders made on 17 December 2021, pursuant to r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). An application to vary the orders by way of reconsideration of them was not pursued.
The rule to which I have just referred permits the court to vary an order if it does not reflect the intention of the court. As the rule itself now makes plain, the court does not undertake a reconsideration of the merits of the relevant order, but simply looks to see whether it reflects the intention of the court as evidenced by the reasons (see Burrell v The Queen (2008) 238 CLR 218 at [20]–[21]).
Generally speaking, the orders that were made on 17 December 2021 provided for the child, the subject of the proceedings, to live with Ms England (“the mother”) in New Zealand and for her to have sole parental responsibility for the child. Orders were made for the child to spend time with the father in three separate sets of circumstances:
(1)In Australia, before the mother and child moved to New Zealand;
(2)If the father moved to New Zealand as well; and finally;
(3)If the father did not move to New Zealand.
In the first and third cases, an order was made for the child to spend video communication time with the father, but no such order was made in the event that the mother, child and the father all lived in New Zealand. The father contends that this omission was a slip and that the intention was that video communication time be had in every case. The mother does not accept this to be so.
On 4 April 2022, I made some further orders by consent, which facilitated the move of the mother and the child, and the father, to New Zealand. They are not relevant to the present issue.
In my reasons for the 17 December 2021 orders (England & Harrison [2021] FedCFamC1F 317) (“the reasons”), I discussed video communication time in the following terms:
189.Those orders will include video communication time. I accept that video communication is very difficult with three year olds, as they are easily bored, often want to do something else and need assistance with it; but, those difficulties will reduce as the child grows older. It is a means of keeping a young child in touch with his father.
The last sentence is significant. It indicates video communication as a poor substitute for face-to-face time, but better than nothing.
The orders that applied whilst the child was to be in Australia provided for him to spend time with the father from 3.00 pm Friday to 5.00 pm Saturday for six months, and thereafter, from 3.00 pm Friday to 5.00 pm Sunday as well as each Wednesday from 3.00 pm to 6.30 pm. Video communication was to take place each Monday and Thursday between 5.00 pm and 5.30 pm. The orders that were to apply if the father did not move to New Zealand provided for the child to spend four days each month with the father, which was to be varied slightly when the child started school. Video communication was to take place twice a week for half an hour, otherwise.
In both cases, the father was to spend relatively infrequent time with the child, at least, initially. In the first case, it was desirable to try and build the relationship between the father and the child pending the change that was to occur. Those orders were never intended to have permanent application, but simply applied until the impending move to New Zealand.
In the second of the above cases, the video communication was to fill the month-long gap in contact between the father and the child. I specifically referred to this at paragraph 155 of the reasons, which said:
155.If the mother and the child reside in New Zealand and the father remains in Australia, the nature of the relationship will be different. It will not be optimal, however, the orders that are to be made will see regular time with the father and will be sufficient to maintain a meaningful relationship between the father and the child. The orders would provide for regular physical time, plus frequent webcam communication time
The orders that are to apply if the father moves to New Zealand provide for the child to spend time with the father from 3.00 pm Friday to 5.00 pm Saturday each alternate week for six months, then extending to 5.00 pm Sunday, as well as each Wednesday from 3.00 pm to 7.00 pm. Once the child turns four, the weekend time is to extend to 9.00 am each Monday. There is therefore much less need for video communication time, given the increased and significant face-to-face time.
Significantly, to my mind, I said at [187] that I intended to make orders largely along the lines proposed by the Independent Children’s Lawyer. Those proposed orders included video communication time between the father and child, until the mother and child moved to New Zealand, and thereafter, if the father did not. They did not provide for video communication time if the father also moved to New Zealand. This is consistent with the approach that I have already described.
I am not satisfied, taking into account the reasons in respect of the orders that were made, that there was an intention to order that there be video communication time if the father moved to New Zealand, or that the orders that were made do not reflect the Court’s intention. The application is therefore dismissed.
The mother seeks a costs order in the sum of $1,100, being the mother’s costs estimated at scale. The application of the father has been wholly unsuccessful. I consider the amount claimed to be reasonable.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 18 May 2022
0
3
1