Gora and Gora (No. 2)

[2013] FamCA 313

FAMILY COURT OF AUSTRALIA

GORA & GORA (NO. 2) [2013] FamCA 313

FAMILY LAW – CHILDREN – Changeover – The father to return the children to the mother’s home

Family Law Act 1975 (Cth)

APPLICANT: Mr Gora

RESPONDENT: Ms Gora

FILE NUMBER: SYC 4022 of 2008

DATE DELIVERED: 12 April 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 5 April 2013

REPRESENTATION

THE APPLICANT IN PERSON: Mr Gora

THE RESPONDENT IN PERSON: Ms Gora

Orders

1. That Order 7 made on 9 August 2012 is varied so as to provide:

   (7) The father will collect the children from and return them to the mother’s home at the commencement and conclusion of all periods of time prescribed in order 6.

2. That all outstanding applications for contravention filed by the father are withdrawn and dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gora & Gora (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4022 of 2008

Mr Gora

Applicant

And

Ms Gora

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Mr Gora and Ms Gora are the parents of N, born in October 1997 and now 15 years of age, and E, born in March 2005 and now aged 8 years (“the children”).  The children live with the mother and spend time with the father each alternate weekend from Friday afternoon until Sunday evening.

2. On 9 August 2012 Fowler J made parenting orders which included requirement that the father collect the children from the mother’s home on Friday afternoon and that the mother make the return trip on Sunday evening.  The mother was not present when his Honour heard the matter on 30 July 2012 and reserved judgment.  His Honour made orders and delivered written reasons on 9 August 2012.  The father caused a sealed copy of the orders to be served personally on the mother on 28 August 2012.

3. On a number of occasions the mother failed to collect the children from the father’s home on Sunday afternoon as required by the orders of 9 August 2012.  The father filed Contravention Applications on 31 August 2012, 18 September 2012 and 7 December 2012.

4. On 14 November 2012 I dismissed the father’s Contravention Application filed on 31 August 2012, which alleged a breach of Order 7 made on 9 August 2012 on 19 August 2012.  The father proved service of a sealed copy of the orders on the mother on 27 August 2012.  I thus found that he failed to establish that the mother had knowledge of the orders of 9 August 2012 on 19 August 2012 and dismissed his application.

5. On 3 December 2012 the father’s Contravention Application filed on 18 September 2012 came before Ryan J.  The mother admitted that she contravened Order 7 made on 9 August 2012 on 2 September 2012.  Her Honour adjourned the father’s Contravention Application to enable the mother to commence proceedings to vary Order 7 made on 9 August 2012.  The mother filed such an application on 18 December 2012.

6. On 11 March 2013 the father’s Contravention Application filed on 7 December 2012 came before me and both parties appeared in person.  By consent, the mother’s application to vary Order 7 of 9 August 2012 was listed for final hearing before me on 5 April 2013 and all extant Contravention Applications were adjourned to that date.

7. On 5 April 2013 I heard the mother’s application to vary Order 7 made 9 August 2012 and reserved judgment.  The father withdrew all outstanding Contravention Applications, which will be dismissed as part of my orders in these proceedings.

Consideration

1. The only issue for determination is the arrangements for transport of the children between the parent’s homes on alternate Sunday afternoons.  The mother sought an order that the father return the children to her home.  The father sought to maintain the existing arrangement that the mother collect the children from his home.

2. On 9 August 2012 Fowler J ordered that the parties have equal shared parental responsibility.  I am now asked to make a parenting order, which means that I am theoretically required to consider whether it is in the children’s best interests, and reasonably practicable, that they spend equal or substantial and significant time with each of the parties.

3. Neither parent sought such an order which, in my view, would be obviously impracticable and contrary to the children’s best interests.  The children are well settled into life with the mother in Suburb D, north-west Sydney, where they have lived since the separation in 2006.  It would be a nonsense to suggest that they attempt to negotiate attendance at schools in both the Suburb D area and the Eastern suburbs to facilitate such an arrangement.  I am thus comfortably satisfied that I am at liberty to proceed to determine the single issue by reference to the children’s best interests, provided that I find it appropriate to entertain the mother’s application to vary Order 7 of 9 August 2012 having regard to the principles enunciated in authorities such as Rice & Asplund (1978) FLC 90-725.

4. In my view, it is appropriate that I entertain the mother’s application despite the orders having been made as recently as 9 August 2012. In her affidavit the mother explained that she received no notice of the court event on 25 May 2012, as she had recently moved house.  On 25 May 2012 she was in a meeting at a customer’s premises when she received a telephone call from the court.  She deposed that she had difficulty in hearing His Honour. 

5. The matter was listed for final hearing on 30 July 2012.  The mother deposed that she was unable to take time off work and was in E Town, in the South Coast region of NSW, for purposes associated with her employment.  She gave uncontradicted evidence that she had been required to take several weeks off work shortly before 30 July 2012 because N underwent a major dental procedure.

6. The decision that the mother collect the children from the father on Sunday afternoons was thus made without her input.  It may be, however, that she could have made greater efforts to participate in the proceedings and been more receptive to attempts to effect service upon her of a sealed copy of the orders.

7. An envelope sent by His Honour’s Associate containing a sealed copy of the orders was returned marked “RTS”.  The mother denied that she wrote those letters or was responsible for the return of the envelope.  The father could not establish that the mother was responsible for the return of the envelope.  I am inclined to accept the mother’s evidence, bearing in mind her uncontradicted contention that she moved house prior to the court event on 25 May 2012.

8. The father engaged a process server who made an attempt to effect service on the mother on 27 August 2012.  The mother said in her oral evidence that she found this person sitting on her front doorstep before 7.00am on that day.  Reasonably, in my view, she claimed to be concerned because she had no idea who he was or why he was at her home.  She called police and a Constable F served her with the orders at 8.00am on 27 August 2012.  I can appreciate that the mother could well have been concerned about the safety for herself and her children on that day.

9. It seems to me, however, to be appropriate to compare the parties’ life circumstances when assessing the reasonableness of the mother’s conduct in relation to the litigation.  The mother works full-time and is almost entirely responsible for the financial support of the children.  The father last held full-time employment in 2007 and currently pays $44.00 per fortnight by way of child support, despite an assessment in an amount of $93.00.  On 3 December 2012 the mother received a letter from the Child Support Agency by which she was advised that the father has a nil assessment for the period 1 January 2013 to 31 March 2014.

10. The father deposed that he had paid to the mother a total of $43,000.00 by way of child support since he became unemployed some five years ago.  On closer scrutiny, however, it became apparent that the Child Support Agency extracted two involuntary payments from the father in the total sum of $38,000.00.  The mother received $18,000.00 when the Agency appropriated that sum from the father’s share of the proceeds of sale of the former matrimonial home.  The mother received $10,000.00 when the Agency placed a departure prohibition order on the father when he wished to travel overseas.  The balance of some $15,000 is nothing more than the father’s assessed contribution to the children’s financial support from time to time.

11. As noted, the father’s current assessment requires him to make no financial contribution to the support of the children.  He deposed that he has current arrears of child support of approximately $15,000.00.  He deposed further that he has a number of health problems and will soon require shoulder surgery.

12. In these circumstances, it seems to me to be likely if not inevitable that the father will make no contribution to the financial support of the children in the foreseeable future.  Effectively, the mother alone will shoulder that burden.  The mother gave uncontradicted evidence that she paid the $7,000.00 on account of N’s dental surgery.  She asked the father to assist her with these costs but, on his own account, he did not respond at all to her email. 

13. In about 2008 the father moved from Suburb D to a home at Suburb G, in the eastern suburbs of Sydney, which is owned by his partner.  The mother and the children remained in Suburb D, where she rents accommodation.  The mother’s uncontradicted evidence was that the father has collected the children from and returned the children to her home each alternate weekend since the separation, leaving aside the short period since the orders of 9 August 2012.

14. Obviously, therefore, the father was able to maintain these arrangements for the period of more than four years since he moved to Suburb G.  In his affidavit he suggested that this travel has cost him $16,020.40 for the past five and a half years.  In his oral evidence, however, the father said that he has not in fact paid this amount.  This derived from an NRMA car operating cost calculator website which indicates a figure of 83.64 cents per kilometre.  He added the cost of motorway tolls to that calculation.

15. The father contrasted his supposed cost of transporting the children both ways with the fact that the mother has the use of “a fully maintained company vehicle”.  It seems that the true picture is that the father’s partner provides him with the use of her car, in respect of which she pays all expenses.  The mother is obliged to pay all non work related motorway toll charges.

16. The mother maintained that she is pressed for time on weekends when the children are in the care of the father.  Her uncontradicted evidence was that she tries to use this time to complete various necessary tasks but has to stop at about 4.00pm on Sunday to ensure that she reaches the father’s home by 5.00pm.

17. The mother maintained that she and the children arrive home at around 6.00pm on Sunday evenings and they then must eat dinner, bath and prepare for school.  She said that the children are often tired after a weekend with the father.

18. Obviously, the children would arrive home at the same time whether they were transported by the father rather than the mother.  The difference is that the mother would have extra time to carry out her weekend tasks and prepare for the return of the children, if the father returns them to her home.

19. The mother is required to travel domestically in the course of her employment.  She maintained that she has requested help form the father in caring for the children on these occasions to no avail.  The father conceded that he has been asked for help on seven or eight occasions and has never provided assistance.  In submissions, the father said “I do not have the capability to go to [Suburb D] to look after the children”.

20. The mother deposed that, on 9 December 2012, N was not at the father’s home when she arrived to collect the children at 5.00pm.  She was obliged to telephone N and arrange to collect him from Suburb H railway station.  Consequently, she and the boys arrived home on this occasion after 6.00pm.  There is no reason for me to suppose that the father would at all times in the future ensure that N is available for collection at his home promptly at 5.00pm.

Conclusion

1. The reality of the mother’s situation is that she is required to assume practically the whole of the responsibility for the children’s financial support and the majority of their physical care.  She must juggle these responsibilities with the demands of her employment, in the absence of assistance from the father.

2. It seems to me to be in the best interests of the children that their parents contribute to their care and support to the extent of their respective abilities and capacities.  I am satisfied that the mother’s efforts to provide for the vast majority of the children’s needs would be considerably assisted if she is afforded additional time and incurs minimal inconvenience on each alternate Sunday. 

3. Persuasively in my view, the mother contended that the father has the luxury of time on alternate Sundays in comparison to the demands imposed on her due to full-time employment.  It seems to me that the father could and should contribute to the care of the children by relieving the mother of the burden of driving from Suburb D to Suburb G and return on these occasions.  As noted, he did so for several years prior to 9 August 2012.  He does not contribute to the financial support of the children and has declined to assist with their care in the past.  He could make this relatively minor contribution to the children’s care, which would considerable assist the mother.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 15 April 2013.

Associate:

Date:  15 April 2013