Gilmore and Gleeson (No.3)

[2016] FCCA 3353

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILMORE & GLEESON (No.3) [2016] FCCA 3353

Catchwords:
FAMILY LAW – Parenting – application to vary existing parenting orders.

Morgan & Miles [2007] FamCA 1230
Rice & Asplund (1978) 6 Fam LR 570

Applicant: MS GILMORE

Respondent: MR GLEESON

File Number: BRC 8283 of 2012

Judgment of: Judge Jarrett

Hearing date: 12 December 2016

Date of Last Submission: 12 December 2016

Delivered at: Brisbane

Delivered on: 13 December 2016

REPRESENTATION

Solicitors for the Applicant: Piper Craig Lawyers

The Respondent appeared in person by telephone link

ORDERS

1. The application in a case filed 14 November, 2016 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gilmore & Gleeson (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8283 of 2012

MS GILMORE

Applicant

And

MR GLEESON

Respondent

REASONS FOR JUDGMENT

1. This is an amended application in a case filed by Ms Gilmore on 28 November 2016 in which she seeks that certain orders made in the Family Court of Australia in Brisbane on 6 June, 2014 be discharged and replaced with a raft of other orders numbered in her amended application 4 through to 25.  The application is opposed by the respondent, Mr Gleeson. 

2. The applicant and the respondent are the parents of two children, X and Y.  X was born in (omitted) 2002 and Y was born in (omitted) 2004.  Mr Gleeson lives in (country omitted) in the (country omitted).  Ms Gilmore lives in south east Queensland.  By her application, Ms Gilmore seeks to have the orders made in the Family Court discharged so as to obviate, it seems, the necessity of sending the children to spend time with their father in (country omitted). 

3. The orders that she seeks to have set aside were made by consent and they provide for the children to live with Ms Gilmore in Australia and to spend time with Mr Gleeson.  The time spending arrangements are complex in that they take account of the fact that the children live in Australia and Mr Gleeson lives in the (country omitted).  The children can spend time with him according to the orders in Australia as is set out in paragraphs 3.1 and 3.2 of the orders and the orders provide for a regime for them to spend time with him in the (country omitted) according to paragraph 3.3 of the orders. 

4. Under paragraph 3.3, commencing in 2015, the children are to spend time with Mr Gleeson in the (country omitted) as agreed between the parties and in default of agreement, for a minimum of two occasions per calendar year during any of the children’s school holidays for a maximum of 21 days including travel time.  In the alternate years, that time is to include Christmas Day.  The orders require Ms Gilmore to book the long flight between Australia and the (country omitted). Other provisions in the orders make arrangements for the payment of the travel costs.  For example, paragraph 4 provides for the parties to share the costs of the children’s airfares to and from (country omitted) equally on certain conditions.  Paragraph 9 sets out the arrangements – the mechanical arrangements for the booking of the relevant travel. 

5. Since the beginning of this year, Mr Gleeson has been agitating to have the children visit him in the (country omitted). He initially proposed that the travel take place in June and July.  For reasons that do not appear from the material, Ms Gilmore opposed that and would not permit the children to travel.  It is suggested in her affidavit filed on 14 November 2016 and in particular, in some correspondence from her lawyers that is appended to that affidavit, that the travel that Mr Gleeson was proposing for the children in June and July was not in conformity with the orders.

6. I cannot tell from the material before me whether the travel was in conformity with the orders or not.  The period seems to be within the 21-day period set by the orders.  Perhaps the suggestion is that the children were to travel outside of a school holiday period, but it is difficult to reconcile the terms of the orders that provide for the children to spend two occasions of time per calendar year with their father and for that time to not exceed 21 days when in Australia, at least in the public school system, all of the school holidays, save for the Christmas school holidays, are two weeks in length.

7. I do note there is some reference in Ms Gilmore’s material to the children attending private schools and it is something about which I can take some notice, I think, that some private schools have longer school holiday periods than public schools.  Maybe these children’s holiday time was longer than the two weeks in the June/July period.  But there is no evidence that bears directly on that.  In any event, as the email correspondence between the parties and the correspondence between the lawyers makes clear, Ms Gilmore was not prepared to countenance the proposition that the children should go to the (country omitted) and spend time with their father as they were entitled to do under the order.

8. The proposition then shifted to the children spending time with Mr Gleeson in December this year.  They are entitled to do that under the orders.  According to Ms Gilmore’s own evidence, she has booked flights for the children and paid for them.  So much appears from her lawyer’s correspondence and her own affidavit filed on 14 November, 2016. 

9. On 17 October, 2016, a letter was sent to Mr Gleeson’s lawyer, Mr M, in relation to the proposals that the children should visit the (country omitted).  In that letter it says this:

   Cost of travel: 

   (1)     ….. orders require our client to book the travel to the (country omitted) which she has now done.

   (2)     Pursuant to order 4 of the orders, our client is required of the costs of the children’s airfares.

   (3)     The costs of the children’s airfares are $2988 per child plus $100 per child additional to fly unaccompanied which totals $6177.

   (4)     The total cost for our client to accompany the children to (country omitted) and pay half of their return airfares to (country omitted) and pay her return airfare to Australia is a total of approximately $5977.20.

10. It is apparent from Ms Gilmore’s evidence that despite her contention that she cannot afford to do so, she has booked and paid for the children’s travel.  One of the grounds of opposition to them travelling to the (country omitted), as Mr Gleeson suggests they should, is that she cannot afford for them to travel there.  But having booked and paid for the travel, the argument is a hollow one.  Ms Gilmore complains in her affidavit about Mr Gleeson’s recalcitrance with respect to child support.  She may well have good reason to complain.  It seems that whatever is available to each of these parties to harass and annoy the other party – it is not just Mr Gleeson – the parties in this case will take up.

11. The untimely payment of child support without any frequency or regularity is no doubt something that causes Ms Gilmore concern and difficulty from time to time.  It is also something which, it seems, Mr Gleeson is more than happy to do for that purpose.  There is no explanation at all as to why it could not be paid regularly.  But in any event, none of that has anything to do with what I need to decide because on Ms Gilmore’s own case, she has booked and paid for the children’s flights.

12. Ms Gilmore says that the orders need to be changed because she thinks that if the children go to the (country omitted), X will not return.  There is much of her affidavit devoted to the interactions between the parties well before the making of the relevant consent orders.  They were made, as I have already indicated, in June of 2014.  Anything that occurred up to that point, in my view, has very little to do with the present application for – as I indicated to the solicitor who appeared for Ms Gilmore – these are final parenting orders and they are subject to the principles that emerged from the case known as Rice & Asplund (1978) 6 Fam LR 570.

13. The principles in Rice & Asplund are still good law.  See for example, Morgan & Miles [2007] FamCA 1230. But there are many other cases that confirm that principle. When I asked the solicitor for Ms Gilmore to identify for me the significant or material change in circumstances that warrants the revisiting of the welfare of these children, I was taken to what was suggested to be a concern that X may not return to Australia if he was to visit his father in the (country omitted). The basis for that concern seems to be two pieces of email correspondence.

14. Ms Gilmore’s affidavit suggests that there are many conversations between Mr Gleeson and X that cause her concern, but really the only exchanges about which there is proper evidence are two emails or text messages.  It is difficult to tell what they are.  The first one appears as an annexure to Ms Gilmore’s affidavit – annexure G19.  Because of the form in which the evidence is presented, it is difficult for me to tell who is saying what.  But the text of the messages are as follows:

    I heard from your mum she responded to my email after waiting 6 weeks she won’t allow u to come in June for

    no reason what a pity but I think we have to go for dec I can’t wait

    Yep dec would probably be better because I get to stay longer their have more fun

    But it bad that I have to wait longer

    No I wanted June AND December

    That would be awesome

    Too bad though

    Yep that’s ur mom

    Yep that’s ur mom

15. All that conversation appears to reflect is a desire between X and his father to get together.  It records disappointment on the part of both of them that Ms Gilmore has stood in the way of the operation of the orders of 6 June, 2014 for no good reason.  The email correspondence or messages of 16 June, 2016 exhibited at G19, advances Ms Gilmore’s case not one jot.  What it does is demonstrate that there is a significant relationship between X and his father that needs to be fostered, encouraged and facilitated through compliance with the current orders.

16. The second set of messages appears at Ms Gilmore’s annexure G23.  Those messages are in the following terms:

    Excellent wow love it has ur mother said you can come yet – No

    And then are some markings that young people describe as “emojis”

    No matter what I say she won’t talk about it

    Some more “emojis”.

    How bad to use you in this way I am very disappointed with her behaviour

    Yea I know

    It’s soo hard

    To talk with her

    Yep you need to come here for a year study

    Yea I want to sooo.  Much maybe for 2

    So I can spend time with u

    I would love that let me know when u are ready

    When ever I can I would love to

    Another “emoji”.

    Ok let me see what I can do are u at school 3/11/2016 text.

17. From that, Ms Gilmore draws the proposition that Mr Gleeson is intending to entice X away from her and to stay in the (country omitted).  In her affidavit in reply, she complains bitterly that it is something that Mr Gleeson ought to have talked to her about rather than directly with X, that is, the proposition that he might spend some time in the (country omitted), perhaps as an exchange student.  But that complaint is mealy-mouthed coming from Ms Gilmore in this case, given her own evidence and the fact that the current orders provide for equal shared parental responsibility.  There are real concerns that Ms Gilmore in this case has made significant decisions for these children without engaging Mr Gleeson at all.  The first is the notion that the orders of 6 June, 2014 ought not be complied with except on her terms.  That is a matter plainly which is a matter for the exercise of equal shared parental responsibility for these parents.  But something which does not seem to have been properly approached by her.  The orders must be complied with unless the parties otherwise agree.  Ms Gilmore’s approach seems to be that they must be renegotiated each time Mr Gleeson seeks to organise for the children to spend time with him pursuant to their terms.

18. Indeed, it is true that she has invited Mr Gleeson to attend mediation, but there is presently no dispute that requires mediation in the sense that mediation might be used to resolve difficulties between these parties that are holding them and the children more importantly, from their father.  The starting proposition is that there are orders in place that need to be and should be complied with.  Whether those orders ought to be changed at some point, certainly is a proper matter for mediation between these parties, but it should not be the starting proposition that the orders are not complied with until such time as there has been mediation.  That is to put the matter around the wrong way.

19. Ms Gilmore also says that she is afeared that Mr Gleeson has encouraged X to stay in the (country omitted) because he has said that he will buy him a car.  He has also provided X an allowance of $100 a month which X apparently uses to purchases computer games and the like.  In my view those matters are of no particular import.  Parents are entitled to provide things for their children; purchasing a car for a young man who is about to commence driving is neither here nor there.  He is indeed fortunate that one of them is prepared to do that.  That it is being provided by his father plainly is irksome for his mother, but that is not a reason to circumscribe the relationship that these children have with their father by denying them the opportunity to engage with him where he lives.

20. It might also be irksome to Ms Gilmore that Mr Gleeson provides an allowance to X and now Y when he is so recalcitrant with his child support.  I understand her concerns about that.  It demonstrates Mr Gleeson to be, as I have indicated before, a person who is apt to take whatever opportunity presents to him to cause Ms Gilmore grief.  It does him no credit. 

21. Ms Gilmore says that another reason for not sending the children is that she is unable to travel with them to the (country omitted).  But I note that the travel she has booked for them is as unaccompanied minors.  These children are certainly old enough to travel as unaccompanied minors.

22. She is afeared that if she was to accompany the children, there is an outstanding property judgment in the (country omitted) and if she went there, she may not be able to leave because she might be, according to her own evidence, incarcerated.  There is no evidence before me that that is likely to happen.  At least no evidence from somebody who has the qualifications to give it.  It is a question of the laws of (country omitted).  There is no evidence before me about what the law in (country omitted) says in relation to judgments for money as this one is and the remedies that might be available against people who do not pay.

23. Ms Gilmore has not demonstrated that there is a significant or material change in circumstances sufficient to warrant the revisiting of the welfare of these children.  Her application to amend or discharge or otherwise vary the orders on 6 June, 2014 must, in my view, be dismissed.  I dismiss it accordingly. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  23 December 2016