Hadaway and Beckham
[2018] FCCA 3681
•14 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HADAWAY & BECKHAM | [2018] FCCA 3681 |
| Catchwords: FAMILY LAW – Parenting Orders – Rule in Rice & Asplund – Failure to establish a significant change of circumstance. |
| Legislation: Family Law Act 1975 |
| Cases cited: Rice & Asplund (1979) FLC 90-725 |
| Applicant: | MR HADAWAY |
| Respondent: | MS BECKHAM |
| File Number: | BRC 7341 of 2015 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | 3 May 2018 |
| Date of Last Submission: | 3 May 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 14 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hackett |
| Solicitors for the Applicant: | PPCS Lawyers |
| Counsel for the Respondent: | Dr Brasch QC |
| Solicitors for the Respondent: | Damien Greer Lawyer |
ORDERS
That the Amended Initiating Application filed 28 March 2018 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hadaway & Beckham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7341 of 2015
| MR HADAWAY |
Applicant
And
| MS BECKHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
I am asked to determine an application to set aside final parenting orders made by consent on 11 April 2016 (“the consent orders”) in relation to [X]. [X] was born 2013 and is presently aged 5.
The thrust of the consent orders provide for [X] to live with his mother in Brisbane and spend time with his father at Location A. The parties have equal shared parental responsibility. By his Initiating Application filed 9 February 2018 the father now seeks to have those orders set aside. The mother opposes his application and seeks the application be dismissed.
When the matter came before me on 3 May 2018. I was asked to make a preliminary determination as whether the father had demonstrated a change of circumstance significant enough to warrant a new hearing in accordance with the decision in Rice & Asplund[1].
[1] (1979) FLC 90-725
Throughout this judgment I will refer to the applicant as the father and the respondent as the mother. I mean no disrespect in doing so.
Legal Approach
A Court is usually reluctant to entertain a fresh application for parenting arrangements because it is rarely in a child’s best interest to have ongoing litigation about his or her care and wellbeing. The Full Court of the Family Court in Rice & Asplund held:
The court should not lightly entertain an application to reverse an earlier custody order. It would need to be satisfied by the Applicant that there was some changed circumstance which would 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. These are not necessarily matters for preliminary submission, but they are matters that the judge should consider in his reasons for decisions.
It is for the court to exercise its discretion in deciding whether to embark upon a full hearing of a matter or to determine the ‘threshold’ issue as a discreet point by way of preliminary determination.[2] Warnick J in SPS & PLS[3] considered the term ‘threshold’ in this context to mean:
… ‘the first question to be determined’ and which, depending on the answer to it, may be dispositive of an application for parenting orders, irrespective of when in a hearing it is posited and answered.[4]
[2] Bennett& Bennett (1991) FLC 92-191, D & Y (1995) FLC 92-581
[3] [2008] FamCAFC 16
[4] ibid at page 13
Collier J in King and Finneran said:
To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of the litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children.[5]
[5] [2001] FamCA 344 at paragraph 44
His Honour also said:
The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection.[6]
[6] ibid at paragraph 41. His Honour’s reference to s.68F was to the Family Law Act as it was prior to the 2006 amendments. See s.60CC
Murphy J in the Full Court decision of Searson & Searson[7] endorsed the approach taken by Warnick J and considered a number of authorities relative to the consideration of the Rice v Asplund argument being considered as a preliminary point. It is worth repeating this analysis of these authorities:
[7] Searson & Searson [2017] FamCAFC 119 Kent and Loughnan JJ agreed with the decision of Murphy J
[8] It is well settled that the “rule in Rice & Asplund” can be applied at the outset of a hearing or proceedings or at the end of a hearing.[8]
[9] In the important decision of SPS & PLS,[9] (“SPS”) Warnick J held that the discussion of the rule in the various authorities had “not always used consistent terminology”. His Honour noted, in particular, that the term “threshold” has had different connotations. His Honour went on to say that he would in that judgment “refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a ‘preliminary matter’”.[10] It is in that sense that the expression is used in these reasons of mine. As it seems abundantly clear to me, the treatment of the rule in that manner is what was contemplated and undertaken by the parties and by her Honour in the proceedings below.
[10] In SPS, Warnick J went on to hold[11] that:
[8] Rice & Asplund (1979) FLC 90-725; SPS & PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383
[9] (2008) FLC 93-363 approved in Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383; Walter & Walter [2016] FamCAFC 56
[10] SPS at [46]
[11] at [48]
… At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
…
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
[11] His Honour went on to say this:[12]
[12] SPS at [81]
… [I]n my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
[12] Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.[13]
[13] Thus, for example, Nygh J said in McEnearney & McEnearney:[14]
… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
[14] To similar effect, Warnick J said in SPS:[15]
Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
[15] The “evil” referred to is the undoubted harm to children of “a perennial football match between parents” and the canvassing “again and again” of issues relating to their best interests. That situation can in my view be distinguished from circumstances in which the parties express their agreement about parenting arrangements in a consent order but are now no longer in agreement and where it is said that the now absence of agreement is due to circumstances that have changed since the making of the consent orders.
[13] Rice & Asplund at 78,905 per Evatt CJ
[14] (1980) FLC 90-866 at 75,499
[15] SPS at [58]
This matter proceeded on the basis that I should determine the Rice and Asplund argument as a preliminary matter. I am satisfied that it is appropriate to do so. I have come to that view notwithstanding the parties have previously come to final consent orders without the benefit of a family report or the need for a final contested hearing. As will be detailed below the parties had at least three appearances in 2015/2016 one of which was a contested interim hearing.
Material Relied Upon
In support of his case the father relied upon the following material:
a)Amended Initiating Application filed 28 March 2018;
b)Affidavits of the father filed:
i)28 March 2018;
ii)15 January 2016;
iii)2 October 2015;
iv)31 July 2015.
c)Affidavit of Ms B filed 30 April 2018;
d)Notice of Risk filed 9 February 2018;
e)Exhibit F1 tendered by the father at hearing being “Bundle of correspondence”; and
f)Written submissions filed by leave on 4 April 2018.
In support of her case the mother relied upon the following material:
a)Response filed 27 March 2018;
b)Affidavit of the mother filed 27 March 2018;
c)Notice of Risk filed 27 March 2018;
d)Order dated 13 October 2015 (Amended 11 November 2015);
e)Reasons for Judgment delivered on 21 January 2016 and accompanying order dated 21 January 2016;
f)Final order dated 11 April 2016; and
g)Report of Dr C dated 11 April 2016 at page 7, 8, 11 and 12.
The mother also relied on the father’s following material:
a)Affidavits of the father filed:
i)9 February 2018 at paragraph 10;
ii)22 January 2016;
iii)20 January 2016;
iv)15 January 2016;
v)2 October 2015; and
vi)31 July 2015 at paragraphs 8, 34, 35.3 and 47 – 49;
b)Initiating Application filed 31 July 2015;
c)Notice of Discontinuance filed 7 September 2015;
d)Application in a Case filed 2 October 2015; and
e)Application in a Case filed 20 January 2016.
Background
The mother is 42 years of age and the father is 41. They commenced living together in 2006 and married in 2011. During their relationship they resided together at Location A. The parties’ only child, [X] was born 2013 and is now 5 years of age.
The relationship broke down in December of 2014 resulting in the mother making application to the Location A Court for a Temporary Protection Order. Her application was resolved on a without admission basis and a Protection Order was made for a period of 12 months.
Following separation [X] has lived with his mother and spent time with his father. The parties attended mediation in January of 2015 where it was agreed that [X] would initially spend supervised day time with the father. The supervision took place on three occasions before moving to unsupervised day time periods.
In early January of 2015 [X] and the mother relocated from the Location A to Brisbane. The mother, who is a professional, works in Brisbane’s central business district. The father who was then self-employed remained living in the former matrimonial home at Location A.
The parties resolved their financial relationship by way of a Binding Financial Agreement which was entered into on 17 April 2015. On 31 July 2015 the father filed an Initiating Application to commence parenting proceedings. This application only detailed the interim orders sought him which were in summary:
a)For the parties to have equal shared parental responsibility;
b)[X] to live with the mother; and
c)For [X] to spend time with the father from Friday afternoon to Monday morning three out of every four weekends.
Whilst the father did not an seek an interim order for [X] to relocate to the Location A at paragraph 34 of his affidavit filed 31 July 2015 he deposed:
“I am opposed to [X] remaining living in Brisbane and whilst I do not seek a recovery order for [X] to be returned to live at Location A, I reserve my right to do so at a later stage in these proceedings.”
On 7 September 2015 the father filed a Notice of Discontinuance. However, on 9 October 2015 he filed an Application in a Case in which he sought orders for:
a)Leave to withdraw the Notice of Discontinuance filed 7 September 2015;
b)[X] and the mother to relocate to the Location A within 7 days;
c)Upon [X]’s relocation to the Location A he spend time with the father each Wednesday night and each alternate weekend from Friday to Monday;
d)In the event the mother does not relocate then [X] shall live with the father at Location A and spend time with the mother.
Both of the father’s applications were first heard by the Court on 13 October 2015. On this date both parties were legally represented with counsel. The parties reached interim consent orders which provided for:
a)[X] to live with the mother;
b)[X] to spend supervised day time with the father each alternate weekend from 9:00am to 5:00pm on Saturday and Sunday; and
c)A psychiatric report to be prepared by Dr C.
These orders were made in the context of the mother remaining in Brisbane with [X].
On 15 January 2016 the father filed a further Application in a Case and sought an urgent hearing. This application sought orders for:
a)The suspension of all orders made on 13 October 2015 relating to [X]’s residence, time with the father and parental responsibly;
b)[X] to live with the father;
c)[X] to spend supervised time with the mother.
On 21 January 2016 I heard and determined the father’s application delivering ex tempore reasons. I dismissed the father’s application and ordered him to pay the mother’s costs fixed in the sum of $3,500.
The matter returned to court for interim hearing on 11 April 2016. Both parties remained legally represented with counsel. The parties entered into negotiations on this date and reached final consent orders (“the consent orders”). The orders made that day are annexed to this judgment. However in summary they provided for:
a)The parties to have equal shared parental responsibility;
b)[X] to live with the mother;
c)[X]’s time with his father gradually increase to:
(i)each alternate weekend from after day care / school Friday to the commencement of school Monday; and
(ii)each other week from after day care / school Monday to before day care Tuesday, with the Father to collect and deliver the child from and to the child’s day care / school;
d)[X]’s time with each parent on special days and holiday periods; and
e)That changeover shall be conducted at D School at the commencement of time and at Location E or a venue and with a private provider agreed between the parties in writing, to facilitate the changeover in the absence of the parties.
These orders were made in the context of the father continuing to reside at Location A and the mother in Brisbane.
Current Application
These current proceedings were commenced by way of Initiating Application filed on 9 February 2018 by the father. In the father’s affidavit filed 9 February 2018 he raised issues regarding the current compliance with the consent orders, primarily relating to [X]’s weekend time with him and practical issues regarding his collection by the father and third parties from child care. Through negotiations the parties were able to resolve these issues by consent. On 4 April 2018 I made orders for the resumption of [X]’s time with his father and authorised the father’s partner and the maternal grandmother to collect him from day-care. The matter was adjourned for the Rice & Asplund hearing.
The ultimate relief sought by the father is to set aside the current orders and in lieu thereof make provision for an equal shared care arrangement in the event the mother relocated within 25km of the Location A or in the alternative that the child live with him and spend time with the mother each alternate weekend from Friday to Monday. The mother’s case is that there is no significant change in circumstances warranting a re-visit of the consent orders and therefore the father’s application should be dismissed.
It appears uncontroversial that the father has always wanted [X] to live at Location A. As discussed earlier in this judgment this is not the first time he has sought orders for [X] to relocate. The father’s evidence speaks to a number of issues which he asserts demonstrate a significant change in circumstance warranting a reopening of the proceedings allowing him to pursue the relocation issue. These are said to be changes to his employment, family life, [X]’s pending formal education, and practical difficulties implementing the consent orders and co-parenting. It was argued that these are significant enough to warrant a reopening. I will now address each asserted change noting that I am required for the purpose of the Rice & Asplund argument to accept his case at its highest.
His case is that he has re-partnered with Ms B since the consent orders were made. Although the father and Ms B had commenced a relationship when the consent orders were made, it was argued that at that time this was “a new relationship in its infancy and evolution phase”. Submissions were made that I should treat the father’s relationship as it now stands as one that could be defined as re-partnering. A relationship that is significantly different to the relationship Ms B and the father shared when the consent orders were made.
Most notably Ms B and the father have resided together since late 2017 and were expecting their first child in 2018. Ms B has three children from a previous relationship aged 11, 8 and 7 who primarily live in this household. They spend time with their father each alternate weekend and half school holidays. The father in these proceedings and Ms B give evidence that their families are now enmeshed. [X] has developed a sibling bond with the other children and enjoys spending time with them. Ms B is a stay at home mother and can care for [X], limiting his need for day-care. Arrangements were in place during 2017 to align the weekends that Ms B’s cared for her children with the times [X] is with the father. Although there was a breakdown in this arrangement my orders of 4 April 2018 provided for its resumption.
When the father entered into the consent orders he was working in Location E. He said he was able to collect the child from day‑care in Location F from Location E. However he now operates a new business at Location G and unlike his previous role, has no support staff. The father submitted that this extra geographical distance between his workplace and [X]’s day-care coupled with reduced flexibility makes [X]’s current time with him impractical and should be considered a change of circumstance.
Under the consent orders, changeovers for [X] are occurring at his day-care. This arrangement essentially sees the father undertaking all of the travel associated with [X]’s time. He submitted that each round trip from the Location A to Brisbane can take four hours or longer as they occur during peak traffic periods. As a result he can spend up to twelve hours a week travelling and argues that this can be too great a time to be absent from his employment. He says that [X] complains about this amount of travel and submitted that it is not in [X]’s best interest.
Further to the above, I note that the consent order made on 4 April 2018 may have alleviated part of the father’s travel burden by authorising Ms B and the paternal grandmother to collect [X] from day-care.
The father submitted that the parties’ co-parenting relationship has broken down, is dysfunctional and almost non-existent. The father’s affidavit filed 28 March 2018 raises a number of alleged breaches by the mother and examples of a poor co-parenting relationship.
He says the mother fails to respond to his communications and will not engage with him about [X]’s health, education and discipline. He argues that this lack of communication is a detriment to [X]’s wellbeing and undermines [X]’s relationship with him. Specifically he submits that the mother has failed to respond to his enquiries about medication for [X] or engage with him to establish a consistent approach to toilet training [X]. Instead he alleges that the mother will communicate with him through [X]. Providing [X] with a list of what to ask the father when she wants items of [X]’s returned to her household. The father observes this practice to cause [X] anxiety and stress.
Notwithstanding an order for equal shared parental responsibility the father alleged that the mother has made a number of unilateral decisions. In particular he said that [X] was to commence formal schooling in 2018 however the mother decided to delay his commencement by a year without consultation. This decision has therefore delayed the commencement of the school holiday time [X] is to spend with the father under the consent order. Instead the mother has decided that [X] will be educated in Brisbane and attend H School from year 5. The father seeks that [X] attend the Location G School. The father is a former student of this school, the parties were married in its chapel and he claims a strong connection to the school.
The father alleged that the mother breached the consent order by not authorising [X]’s day care centre to list the father as a parent. As a result the father was not able to nominate third parties to collect [X]. The father deposes to the difficulties this has caused for [X]’s time with him and in some cases has led to [X] missing time with him. He argues the mother’s literal interpretation of the orders resulted in the day care centre deferring authority to the mother to make decisions about who can collect [X].
The father further alleged that the mother unilaterally altered [X]’s time with him without consultation. This change caused a misalignment in the weekend time Ms B’s children and [X] where living in father’s household.
For completeness, I note that my orders of 4 April 2018 addressed the issue of day care collection and weekend time addressed above. However I have re-addressed these issues as I feel it is important to highlight the dysfunction asserted on the father’s case that existed prior to parties being before the court.
During the hearing the father tendered a bundle of correspondence which was marked as Exhibit 1. Contained therein are email exchanges between the parties in January 2018 and a solicitor’s letter. The email communications between the parties are a bitter exchange about many of the issues I have discussed in the father’s case. The communication between the parties could only be described as poor and highly conflictual. The parties appear to not be able to agree on a single issue and appear more fixated on their own dispute rather than resolving issues for [X]. The majority of their communication is consumed by making allegations of misconduct and breaches of the orders against the other.
Additionally the father submits that I should give weight to the context in which the consent order was made. The context being the orders were not made at final hearing but rather in a duty list and the parties did not have the benefit of a family report. [X] was two when the orders were made. He is now five and soon to commence formal education.
The mother invited me to find no change in circumstance since the consent orders but rather a desire by the father to revisit what has been a long standing issue for him. Her case is that that she relocated to Brisbane only a month after separation in January 2015. Six months later the father sought no order for [X] to relocate in his Initiating Application filed 31 July 2015 rather reserving his right to revisit to the issue in his affidavit filed same date.
The mother argued the issue of her relocation of the child’s residence was resolved by way of consent without a relocation order. She submits that this issue has been disposed of yet the father is seeking to re-visit it in this application.
The mother disputes that the father’s change in employment amounts to a change in circumstance. She highlights that the father remains living in the same residence at Location A. She submits that whilst the father now works in Location G instead of Location E the travel time with [X] is the same. Both parties remain living in the same residences as they were when the consent orders were made. Therefore any change in the father’s travel is a result a decision he has made and he should bear the consequences of such decision. The mother also disputes the significant amount of travel time alleged by the father under the consent orders. Further she swears that Ms B undertakes the collection of [X] on Monday/Tuesday and I note the orders made on 4 April 2018 confirming Ms B and the paternal grandmother as people authorised to collect [X]. Therefore she says that the father is only collecting and delivering [X] once per fortnight.
Regarding [X]’s education the mother again highlights the father’s Application in a Case filed 2 October 2015 which disposed of the father’s relocation application. She submits that an order for equal shared parental responsibility is in place under the consent orders. The consent order allows for the [X] and the mother to reside in Brisbane. No change of circumstance has been demonstrated, only a desire by the father for [X] to attend the Location G School. The mother also disputes that the decision to delay [X]’s school by a year was made without the father’s consent. She swears to discussions had with the father in October 2017 in which the father agreed to delay [X]’s formal schooling.
In response to the father’s complaints as to the amount of day-care [X] receives, the mother submits that when the parties were together they had a nanny for four days a week. She relies on the father’s affidavit filed 31 July 2015 at paragraph 28.22 to highlight that [X] has attended childcare since separation as both parties worked.
The mother rejects the father’s assertion that he has “re-partnered”. She relies on the evidence of Dr C in his report dated 11 April 2016. Dr C reports that the father was in a relationship with Ms B on the date of his interviews being 11 February 2016 although they were not living together at this time. Page 12 of the report canvasses an incident that occurred between the parties at a sports club in September of 2015 in which Ms B’s involvement with the father was raised. Counsel for the mother submits I should accept that Ms B was “on the scene at least by September 15”.
Counsel for the mother submitted that little weight should be placed on the fact that the father and Ms B now have a blended family. Her case is that [X] has the opportunity to spend time with Ms B’s children under the current consent order and she is happy to align [X]’s time with the father accordingly. Counsel for the mother submitted that Ms B’s evidence was important to highlight how well [X] was managing under the consent order. Ms B deposes that:
25. My Children and I are fond of [X] and have formed a loving and caring relationship with [X].
26. Ben, [X], my children and I have established a new family unit.
27. [X] has developed a sibling bond with my children and they all enjoy spending time together.
Ultimately the mother asks me to find that the father’s relationship is not a significant change in circumstance as this relationship pre-dated the orders by some time. That the blended family Ms B and the father now have is an extension of their relationship when the consent orders were made and that any changes since should be categorised as normal exigencies of life.
The mother concedes that the parties’ co-parenting relation is not perfect. Submissions were made that whilst they have disagreements, they should be viewed as a normal part of parenting. It was argued that no longer agreeing to an order is not a change in circumstance and I should be cautious about reopen proceedings. The mother points to the father’s first affidavit filed 31 July 2015 to highlight that the parties’ co-parenting relationship has never been perfect. She submits that paragraphs 43 – 46 therein describe strained and difficult communication between the parties in similar terms to which the father now complains.
Discussion
I accept the father’s assertion that the consent orders were made in the context of an appearance in a “list” rather than at a final hearing. The parties did not have the benefit of a family report at that time. However, it is still necessary for the applicant to show there has been a significant change of circumstances. I have not been persuaded that he has.
The father filed his Initiating Application seeking the child’s relocation in February 2018 just over three years after the mother and child moved to Brisbane. He had previously sought orders for the child’s return to the Location A in his Application in a Case filed 9 October 2015 but entered into final consent orders on 11 April 2016 in the context of the mother and child remaining in Brisbane. The consent orders do not bear any notation as to an intention to revisit the child’s residential location in the future. The issue of the child’s relocation had been dealt with on a final basis by these orders. Parents who have the benefit of orders should not have to face the prospect of the stability those orders afford them being re-litigated unless there is a significant change in circumstance.
I accept the submissions made by the mother that the father’s change of employment base from Location E to Location G is not a significant change. In making the decision to relocate his business the father could have taken into account the impact such a move would have on his ability to spend time with the child.
The evolution of the father’s relationship with Ms B is not, in my view, a change that could be considered sufficiently significant to warrant a re-opening of the litigation. It is not disputed that Ms B was in a relationship with the father when he entered into the consent orders although it was conceded that they were not living together at that point in time. The blending of families for Ms B and the father is really part of the normal exigencies of life and do not constitute a significant change of circumstance.
The father complained, with some justification, about the dysfunctional communication between the parties. This though has been a hallmark of the post separation relationship which pre-dated the consent orders. I do not consider this to be a change of circumstance albeit an ongoing problem for these parents in the exercise of their parenting.
In his evidence the father raised the issue of the child’s enrolment at school. He would like the child to attend the Location G School although he did not seek that order in his Amended Initiating Application. Although the father has complained about the mother making unilateral decisions about the child’s education he has not brought any contravention application in relation to a breach of an order for parental responsibility. Given the father has not sought an order in relation to the child’s school or a change in the order for parental responsibility I am not satisfied that the issues in relation to decision making amount to a significant change in circumstances.
When I consider the above matters and accepting the father’s evidence at its highest I am not satisfied he has established any significant change of circumstances. Therefore I cannot be satisfied that it would be in the child’s best interests for a new hearing in this matter. I will therefore dismiss his application.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Date: 14 December 2018
Annexure A
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
That all previous Orders be discharged.
Parental Responsibility
That the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the child [X] born 2013 (“the child”).
Time with the parents
That the child shall live with the Mother and spend time and communicate with the Father at such times as agreed between the parties and in default of agreement as follows:
(a)From 9.00am to 5.00pm on the Saturday and 8.00am to 4.30pm on the Sunday of the same weekend each alternate weekend.
(b)Commencing the weekend following 17 May 2016 each alternate weekend from 9:00am Saturday to 5.00pm Sunday.
(c)Commencing the weekend of 26 August 2016 each alternate weekend from 5.00pm after day care Friday until 5:00pm Sunday.
(d)Commencing the weekend following the child commencing day care in 2017:
(i)each alternate weekend from after day care / school Friday to the commencement of school Monday;
(ii)each other week from after day care / school Monday to before day care Tuesday, with the Father to collect and deliver the child from and to the child’s day care / school.
Holidays and Special Occasions before the child commences prep
That in addition to the alternate weekend time provided above the child spend from 9:00am Wednesday 5 October 2016 to 5:00pm 6 October 2016, with handover to occur at care of Ms K/Location E.
That in addition to the alternate weekend time provided for above the child spend from 8:00am Boxing Day 2016 until 5.00pm 29 December 2016, with handover to occur at of Ms K/Location E.
That in addition to the alternate weekend time provided above the child spend from 9:00am on 9 January 2017 until 5:00pm on 13 January 2017.
That in addition to the alternate weekend time provided above the child spend 9:00am Good Friday until 5:00pm Easter Sunday 2017.
That further in 2017:
(a)6 days / 5 nights in the June/July school holidays;
(b)7 days / 6 nights in the September/October school holidays; and
(c)For 3 x 1 week periods in the 2017 / 2018 Christmas school holiday periods.
Holidays following the child commencing prep
That once the child commences prep schooling, the child shall spend half of each school holiday period with each parent, with the child to spend the first half of school holiday periods with the Mother in even years and second half in odd years, and the first half with the Father in odd years and the second half in even years.
Special Occasions
That the child shall spend time with his parents on special occasions as follows:
(a) for Christmas Day:
i.from 4.00pm Christmas Eve (December 24th) until 8.00am Boxing Day (December 26th) in even numbered years with the Mother and in odd numbered years with the Father; and
ii.from 8.00am Boxing Day (December 26th) until 8.00am December 27th in odd numbered years with the Mother and in even numbered years with the Father.
(b) on the child's birthday (with the parent they are not with on the evening):
i.if a day care/school day, from after day care/school until 7.00pm;
ii.if a non-day care day, from 8.00am until 1.00 pm; and
iii.with that parent to be responsible to collect and return the child;
(c)with the Father on Father's Day (if a non-contact weekend) from 9.00am until 5.00pm with the Father to collect and deliver the child.
(d)with the Mother on Mother's Day (if a contact weekend) from 9.00am with the Mother to collect the child.
That the child shall communicate with his parents by the telephone at such times as reasonably requested by the child and in relation to such communication each parent shall:
(a)ensure that the child is available to receive the telephone call;
(b)arrange for the child to telephone the other parent on the following night, if for any unforeseen circumstance, the parent misses the telephone call from that parent;
(c)by telephone / face time each Tuesday and Thursday (and Monday until after 3(d)i commenced) for a period of 15 minutes between 5.00pm and 5.30pm and with the child not to be subject to distraction during the calls
Exchange of Information
That each party is hereby authorised to obtain information regarding the child from the child’s medical providers, and each party shall advise the other within 48 hours of the name and contact details of any medical practitioner who has treated the child.
That each party is hereby authorised to obtain information from the child’s day care centre / school, all notices, letters, reports and invitations to attend parent teacher interviews.
That unless otherwise agreed between the parties the Mother and the Father shall communicate with each other by email other than in the event of an emergency in which case they may communicate by telephone or text message.
That the parties advise the other of any changes of their address or telephone number within 24 hours of such change occurring.
Collection and Delivery
That unless otherwise agreed in writing until 17 May 2016, handover shall be conducted at Location E or at venue and with a private provider agreed between the parties in writing, to facilitate the changeover in the absence of the parties.
That following 17 May 2016 and subject to paragraph 3(d) above changeover shall be conducted at D School at the commencement of time and at Location E or a venue and with a private provider agreed between the parties in writing, to facilitate the changeover in the absence of the parties.
Miscellaneous
That in the event the Father is unable to facilitate time that he provide the Mother of no less than 24 hours’ notice in writing.
NOTATION:
A.That the Father intends forthwith to withdraw his Application for a Protection Order filed 25 September 2015.
B.That the Mother intends forthwith to withdraw her Application for a Protection Order filed 29 January 2016.
C.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in fact sheet attached and these particulars are included in these orders.
Key Legal Topics
Areas of Law
-
Civil Procedure
Legal Concepts
-
Abuse of Process
-
Procedural Fairness
-
Standing
0
4
2