Gotch and Gotch - [2008] FMCAfam 898

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOTCH & GOTCH

[2008] FMCAfam 898

FAMILY LAW – Final parenting orders – existing orders not varied – no changed circumstance.

Family Law Act 1975, s.60CC(2), 60CC(3), 60CC(4), 60CC(4A)

Rice and Asplund (1979) FLC 90–725
Gotch & Gotch [2006] FMCAfam 769

Applicant:

MS GOTCH

Respondent:

MR GOTCH

File Number:

BRC 5979 of 2007

Judgment of:

Turner FM

Hearing date:

11 August 2008

Date of Last Submission:

11 August 2008

Delivered at:

Melbourne

Delivered on:

11 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr. Turnbull

Solicitors for the Applicant:

Berry Family Lawyers

Counsel for the Respondent:

Mr. Galloway (by telephone link)

Solicitors for the Respondent:

BMLaw Solicitors

ORDERS

The application filed 30 June 2008 is dismissed.
The applicant pay the costs of the respondent fixed in the sum of $2,200.00 within 28 days.

IT IS NOTED that publication of this judgment under the pseudonym Gotch & Gotch is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

BRC 5979 of 2007

MS GOTCH

Applicant

And

MR GOTCH

Respondent

REASONS FOR JUDGMENT

The issue before the Court involves what is referred to as the rule in Rice and Asplund (1979) FLC 90–725 being that:
“a court should not lightly entertain an application to reverse an earlier custody order… Therefore, the court would need to be satisfied by the applicant… there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…It is a question of finding that here are circumstances which require the Court to consider afresh how the welfare of the child should be best served. These principles apply whether the original order is made by consent or after a contested hearing…” (Evatt CJ)
The orders of the Court on 16 June 2006 include Order 8:
“8. That the father, at his election, may enjoy the contact set out in Order 6(d) and (e) in Australia.”
By application filed on 30 June 2008, the applicant mother seeks interim orders including:
“5. That paragraph 7(sic “8”) of the Final Orders dated 16 June 2006 be stayed.”
The change sought is very significant.
In considering the mother’s application to relocate to the United States of America, Federal Magistrate Baumann stated in Gotch & Gotch [2006] FMCAfam 769 at paragraphs 46–49:
“46. Clearly, the practicalities of exercising contact can present a difficulty. There is a general lack of evidence of how n the future the financial position of the parties will alter. For example, although the mother is hopeful, and I think with some degree of confidence, of obtaining worthwhile employment and/or undertaking further studies in the USA, nonetheless her capacity to contribute to air fares would be reduced.
47. So fundamental do I believe it, however, to the children having contact with their father, at least in a way which can be guaranteed by a Court order for a period, that I propose, as I indicated to counsel in final submissions, to require the mother from the property settlement due to her under the order to retain $10,000 in Australia to be utilised for the children’s air fares.
48. If the mother wishes to accompany the children then, in my view, that will need to be at her cost. If the father wishes to see the children in America then that will be at his cost. On my estimations $10,000 should provide at least sufficient funds to accommodate the children’s air fares to Australia for at least about three visits.
49. Thereafter, I believe the children’s air fares ought be shared. I say this because it is uncertain how the father’s responsibility for child support will be met in the United States. There will be a point in time no doubt where the children as they get older may wish to spend more of their time in America than Australia, but the evidence I have I am not able to predict when that might be the case.”
The applicant mother sets out in her affidavit filed on 30 June 2008 the changed circumstances and new factors she alleges as follows:
“…
15.On two (2) occasions of their trips to Australia, the children have missed school on their return to the United of America.
…
17. After their return from their last trip to Australia, the children were unable to be re-enrolled until 25 January 2008. They missed more than two (2) weeks of schooling.
…
22. The children all wish for their father to come to visit them in the United States of America and they have expressed to me this is so their father might be able to see how they lead their lives in the United States of America, who their friends are, what they do and importantly to avoid the children’s tiredness, missing their friends and missing their school and avoiding attendance at their fathers religious organisation.
…
28. Despite the children’s wishes, [Mr Gotch] chooses to involve the children heavily in the religious organisation when they attend contact with him in Australia.
29. The children have reacted poorly in relation to [Mr Gotch]’s determination to involve them with the religious organisation and their behaviour has included:-
a)    [X] taking rotten eggs with him then smearing the mixture all over one of the preparation rooms in the religious organisation;
b)    [X] writing offensive language on the walls of the organisation’s building in a permanent marker pen particularly on the walls of a bathroom and in a unused Sunday School room;
c)    [Z] smashing strawberries into the furniture in one of their buildings;
d)    [Z] setting off fire alarms and sometimes repeating that after the evacuation once the members of the organisations have been allowed back inside;
e)    [Z] taking to creative writing and venting her thoughts on the bathroom walls again using a permanent marker pen;
f)     [Z] talking rudely in the Sunday School to the teachers;
g)    [Z] generally causing chaos in Sunday School class saying things including “why do you only know the truth?” and “why cant girls speak?”;
h)    [Y] urinating in the unused rooms and indiscriminately in the bathrooms;
i)     [Y] openly encouraging other children to disobey their parents;
j)     [Y] betting with other children to do various challenges with are contrary to the teaching of the religious organisations;
k)    [Y] and [X] playing football very roughly with the other children;
l)     [Y] pretending to put money into the offering bag but instead lifting money out of the bag which I have seen him put into a UNICEF bag to donate it to that organisation on the plane ride back to the United States.
…”
The father responded to these allegations in his affidavit filed on

6 August 2008
.
The father responds to paragraph 13 of the mother’s affidavit, by saying that on 4 July 2008 he offered to fly to the United States of America to collect the children, but that the mother’s rejected that request. There is nothing to contest that evidence. If, as alleged by them other, the children stated that they will not travel to Australia without her that may be regarded as a changed circumstance.

However that event seems to have been contemplated by his Honour, as in paragraph 48, he stated that “if the mother wishes to accompany the children then, in my view that will need to be at her cost”.
The father sets out his understanding in paragraph 4 that the children may be able to travel between countries under airline staff supervision. The Court does not consider that this circumstance warrants the variation/stay. It is in effect a variation that is sought, as a stay of Order 8 would mean that the children would spend time with their father in the USA not Australia.
Paragraph 16 of the mother’s affidavit states that the children suffer from jetlag on their return, and this has affected their schooling.
The father responds in paragraph 6 by stating that the children’s late return to the United States of America resulted from the mother’s request that they stay one week longer. Cooperation between the parents will provide time for the children to recover from jetlag.

The circumstance does not justify the variation sought.
Paragraph 17 of the mother’s affidavit complains about the children returning to the United States of America late after their last trip to Australia. The father responds in paragraph 7 that this resulted because the mother unilaterally reduced the mid–year visit to four weeks. Order 7(e) of the Orders of 16 June 2006 provided for that visit to be for six weeks. Cooperation between the parents will provide time for the children to recover from jetlag. This circumstance does not justify the change sought.
Paragraph 20 of the mother’s affidavit complains that the father does not supervise the children reading material that the mother sent with them. The husband responds in paragraph 8 that he only remembers the children bringing reading material on one occasion. The applicant has been advised that the children’s schooling had suffered.

Again cooperation between the parents will remove this problem.

This circumstance does not justify the change sought.
The father states that the mother was aware of the length of school holidays in the United States of America at the time his Honour made his orders. He states that the school will not be missed if the orders of 16 June 2006 are complied with.
Paragraph 21 of the mother’s affidavit states the children have told her they do not wish to travel to Australia to see their father. The father responds in paragraph 11 that the children have never told him that, and that they sound excited when they discuss things to do in Australia.
It has not been established that the children do not want to visit Australia. It is for the mother to establish the circumstance.

This allegation does not justify the change sought.
Paragraph 22 of the mother’s affidavit states that the children want their father to visit them in the United States of America. The father agrees that the children would like him to visit them in the United States of America, but submits that this should not be as a substitute for the visits to Australia. He points out correctly that the orders contemplate him spending time with the children in the United States of America (order 7(f)). This circumstance does not justify the change sought.
The father states in paragraph 9 that the children have a large extended family in Australia, and that finishing visits to Australia will alienate the children from the father and their extended family. The Court agrees. In deciding whether order 8 of the orders of 16 June 2006 should be stayed/varied as sought, the Court must have regard to what is in the best interests of the children. Maintaining the order as it is, will be in the best interest of the children, as it will maintain them spending time with their mother, father and with their extended family in Australia.
Paragraph 29 of the mother’s affidavit alleges that the children have reacted badly to their father’s efforts to involve them with his religious organisation and details reports of their behaviour. The father responds that the alleged behavioural problems have not been brought to his attention.
Having regard to some of the alleged conduct, the Court finds that if it was occurring it would have been brought to the father’s attention, for instance “(f) [Z] talking rudely in the Sunday School to the teachers” and “(j) [Y] betting with other children to do various challenges with are contrary to the teaching of the religious organisations” and “(l) [Y] pretending to put money into the offering bag but instead lifting money out of the bag ...”
These alleged circumstances do not justify the change sought. If true, the alleged behaviour could warrant the children being disciplined, but should not result in them not spending time with their father in Australia.
Paragraph 36 of the mother’s affidavit complaints that the cost of her travelling to Australia with the children on all three occasions has been financially crippling to her. The father responds in paragraph 16 that with two exceptions he has paid child support on time.

The mother bearing the cost of the travelling to Australia with the children was taken into account by his Honour when making his orders. Paragraph 48 of his Honour’s decision provides the mother’s travel to Australia “will need to be at her cost.”
The father alleges that he has offered to fly to the United States of America to collect the children but the mother has refused to allow that. The cost to the mother is not a changed circumstance that justifies the change sought.
Paragraph 17 of the father’s affidavit alleges that the mother has not complied with the orders of 16 June 2008. That is not a circumstance that the Court should consider determining whether Order 8 should be stayed/varied.
Paragraph 20 of the father’s affidavit alleges his and the families relationship with the children will be damaged if the children are not allowed to spend time with him in his home environment in Australia. The Court finds much force in the contention.
In determining what is in the best interest of a child the Court must have regard to the benefit of the child having a meaningful relationship with both parents (s.60CC(2)(a)). Spending time with the father in Australia will facilitate that; spending time with him in America instead would not be in the best interests of the children.
The Court must also consider s.60CC(3):
a)Any views expressed by the children s.60CC(3)(a). It is alleged that they do not want to travel to Australia to spend time with their father; This has not been established to the satisfaction of the Court.
b)Section 60CC(3)(b) the nature of the relationship with the children with each of their parents and other persons. The father says his time with his children will be better in his home environment in Australia. The Court accepts that the children’s relationship with the father and his family in Australia will benefit from them spending time with them in Australia. The relationship of the children with their mother and with other people in the United States of America will not be detrimentally affected by the children visiting Australia.
c)Section 60CC(3)(c) the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent. There is no evidence that the father does not have that willingness and ability; the mother on the other hand, in seeking to vary orders and decrease the children’s time in Australia with their father, does not show such willingness. For instance, in July 2008 the applicant did not send the children to Australia, even though the father book and paid for return tickets. The father deposes that he has previously indicated to the applicant that he was prepared to travel to the United States of America to collect the children, but that the mother refused, and that the tickets booked for the children’s flight were not used. These circumstances do not support order 8 being varied.
d)Section 60CC(3)(d) the children travelling to Australia to spend time with their father causes short periods of separation from their mother, with whom they live the remainder of the year.
e)Section 60CC(3)(e) there appears to be some practical difficulties coordinating time in Australia with school holidays in the United States of America. However the father deposes that the times can be coordinated. The mother deposes that her teaching commitments will prevent her from travelling to Australia with the children and that it has been financially crippling for her to travel to Australia with the children. The father deposes that he has paid for the children’s return flights and that there is no need for the mother to travel with them. [X] was born [in] 1994, [Y] [in] 1997 and [Z] [in] 1998. They are therefore 13, 11 and 10 respectively. The mother is free to choose not to travel with the children and the father is happy for them to be supervised by airline staff. His Honour decided that after $10,000 had been expended on the children’s airfares, the fares ought to be shared by the parties. These factors do not justify the variation sought.
f)Section 60CC(3)(f) there is no suggestion that either parent is not able to look after the children’s needs.
g)Section 60CC(3)(6) not relevant.
h)Section 60CC(3)(h) not relevant.
i)Section 60CC(3)(i) both parents demonstrate responsible parenting, but the Court is concerned by what may be efforts by the mother to compromise the benefits to the children of spending time with their father in his home environment.
j)Section 60CC(3)(j) not relevant.
k)Section 60CC(3)(k) not relevant.
l)Section 60CC(3)(l) leaving Order 8 as it is, is least likely to lead to the institution of further proceedings in relation to the children. Variation could lead to further proceedings to achieve a compromise situation.
m)Section 60CC(3)(m) a factor of relevance is that his Honour provided for the time he spent in Australia, and felt that it was “so fundamental that they (spend time) with their father”, that the mother had to leave $10,000 in Australia to pay towards the children’s airfares. His Honour thereby indicated that it was fundamental that the children be able to travel to Australia to spend time with their father.
In determining what is in best interest of the children the Court must also consider the factors in s.60CC(4) and (4A) which are as follows:
“(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.”
Both parents have taken every opportunity to do things described in s.60CC(4) but the mother does no want to facilitate the father spending time with his children in his home environment in Australia.

The father deposes that, other than on two occasions he has paid the maintenance for his children on time.
The Court has regard to what is best described as “a begrudging attitude of the mother” towards compliance with Order 8 (s.60CC(4A)).
The Court has taken into account all the above statements in the mother’s affidavit. In addition to the above findings, the Court finds as follows in relation to the mother’s other contentions:
a)Paragraph 14. Jetlag is not a circumstance that justifies the variation sought.
b)Paragraph 15. As deposed by the father, missed schooling can be rectified by coordinating time in Australia with school holidays.
c)Paragraph 18 has no relevance for present purposes.
d)Paragraph 19. The father deposes that he was aware of reading material being sent to Australia with the children only once.
e)Paragraphs 23 and 24 demonstrate a responsible attitude to parenting by the mother.
f)Paragraph 25 contains assertions which have not been proven.
g)Paragraph 26 refers to factors that existed at the time the orders were made on 16 June 2006.
h)Paragraphs 27, 28, 30, 31, 32 and 33 contain assertions that are not proven.
i)Paragraph 34. The difficulties described can be overcome by cooperation between the parties.

The Court finds that the applicant mother has not established a changed circumstance that individually or commutatively, warrants the change sought, or a circumstance that was not disclosed at the original hearing that may have affected the result and warrant the change sought.
The Court orders that:
i)The application filed on 30 June 2008 is dismissed.
ii)The applicant pay the respondent’s costs fixed in the sum of $2,200.00 within 28 days.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Kirra Vickerman

Date: 11 August 2008