Hewett & Emery (No 2)
[2022] FedCFamC2F 954
Federal Circuit and Family Court of Australia
(DIVISION 2)
Hewett & Emery (No 2) [2022] FedCFamC2F 954
File number: DGC 2823 of 2017 Judgment of: JUDGE O'SHANNESSY Date of judgment: 16 June 2022 Catchwords: FAMILY LAW – Rice & Asplund hearing – family dispute resolution conference order – high level of conflict between parties – disputes over key decisions – communication issues in parenting relationship. Legislation: Family Law Act 1975 (Cth) s 69ZL Cases cited: Goode & Goode (2006) FLC 93-286
Marsden & Winch (2009) 42 FamLR 1
Rice v Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
Division: Division 2 Family Law Number of paragraphs: 44 Date of hearing: 16 June 2022 Place: Melbourne Counsel for the Applicant: Ms T. Borger Solicitor for the Applicant: Macedon Ranges Family Law Counsel for the Respondent: Mr G. Glezakos Solicitor for the Respondent: Leslie Family Law ORDERS
DGC 2823 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HEWETT
Applicant
AND: MS EMERY
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
16 JUNE 2022
THE COURT ORDERS THAT:
The threshold issue
1.The application of the respondent ("mother") to summarily dismiss the amended initiating application of the applicant ("father") filed 25 May 2022 pursuant to the application of the principles in Rice v Asplund (1979) FLC 90-725 be dismissed.
2.The costs of the parties of this day be reserved to trial.
Next steps
3.The parties and children attend upon single expert psychologist Ms E, or such other single expert as agreed between the parties should Ms E become unavailable, for the preparation of a family report for use in the proceeding and for that purpose:
(a)The parties each pay one half of Ms E's costs of preparing the report;
(b)The parties attend upon Ms E on 31 August 2022, or such other date as agreed in writing should that date become unavailable; and
(c)Not less than 7 days prior to the appointments in paragraph [3.2], each party forward to Ms E the court documents filed on their behalf in the proceeding to date; and
(d)The parties each otherwise follow all reasonable directions of Ms E to assist her in preparing the report including providing any further information or authority to liaise with any medical practitioner or psychologist upon whom the parties or children attend.
4.Ms E be granted leave to inspect the Court file and all document produced pursuant to subpoena.
Dispute resolution
5.Pursuant to Section 13C(1)(b) of the Family Law Act 1975 (Cth), the parties and their legal representatives (if any) shall attend:
(a)Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date to be fixed (requested to be not before 10 October 2022), with each party to attend separately at times to be advised; and
(b)Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than seven (7) days after the date referred to in order 5(a).
6.The matter shall be referred to the Executive Director Dispute Resolution for allocation and listing of the FDR Conference dates.
Part 1 of the FDR Conference
7.Part 1 of the confidential FDR Conference shall proceed by telephone and each party must, within two (2) days of receiving notification of the dates of each part of the FDR Conference, notify the Court by email of their best contact telephone number (and include details of the file name and Court file number).
8.Unless otherwise directed by the Registrar conducting the FDR Conference, the Independent Children's Lawyer's appearance shall be excused from Part 1 of the FDR Conference.
9.Not later than 4.00 pm seven (7) days prior to Part 1 of the FDR Conference, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court by email and to the other party a single collated bundle of documents comprising:
(i)a Confidential Outline of Case (Dispute Resolution);
(ii)a detailed minute of Orders Sought;
(iii)details of any previous or current family violence orders; and
(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted).
FDR Conference
10.The parties shall otherwise comply with any other necessary order, direction or request made by the Registrar to facilitate the FDR Conference.
11.The Registrar may vacate the FDR Conference in the event:
(a)of non-attendance by either party at Part 1 of the Conference; or
(b)that pursuant to Regulation 29 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, the Registrar is no longer satisfied that the conference is appropriate.
Miscellaneous
12.The parties each have liberty to apply following the release of the family report.
13.All interim applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A.The matter is listed for final hearing on 5 June 2023 at 10.00am (for 3 days).
B.The FDR conference should be after the release of the family report, not before 10 October 2022.
C.The Executive Director Dispute Resolution is requested to have regard to the following when fixing a date for the FDR Conference:
(a)this matter is suitable for a full day conference;
(b)this matter would benefit from the involvement of a Court Child Expert (as Family Counsellor) in the FDR Conference.
D.The dates and times fixed for all parts of the FDR Conference will be emailed to the parties and their legal practitioners, including any Independent Children's Lawyer, at the email address noted on the Court file.
E.Documents required to be provided to the Court pursuant to these orders must be emailed to the Court as set out in the email confirming the FDR Conference dates and times.
F.Not later than 4.00pm seven (7) days before the FDR Conference date, the lawyer for each party must give the party for whom they act a written notice of:
(a)the party's actual costs, both paid and owing, up to and including the Family Dispute Resolution Conference; and
(b)the estimated future costs of the party up to and including each future court event, including trial; and
(c)any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.
G.For the purposes of the Family Dispute Resolution Conference, the parties are referred to s 131 of the Evidence Act 1995 (Cth) and ss 10J and 10H of the Family Law Act 1975 (Cth) and to the Court's Family Dispute Resolution Fact Sheet.
H.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the FDR Conference only. It is not to be filed or relied upon after the conclusion of the conference.
I.Part 1 of the FDR Conference is the first part of the Conference and is confidential. The other party will not be in attendance.
J.The FDR Conference is an opportunity for the parties to make a genuine effort to resolve their parenting dispute in a confidential, child focussed setting. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.
K.The structure and duration of the FDR Conference will be at the discretion of the Registrar and will vary depending on the nature of the issues for consideration. Unless otherwise advised:
(a)parties and their legal representatives in short (four hour) conferences are expected to be available until at least 1.00pm and at the specific times requested by the Registrar; and
(b)parties and their legal representatives in full day conferences are expected to be available for the entirety of the day and at the specific times requested by the Registrar.
L.Pursuant to ss.65DA(2) and 62B 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 Annexure A and these particulars are included in these orders.
M.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
N.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
O.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
P.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 a pseudonym Hewett & Emery has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore.
This matter comes before me today on 16 June 2022 for a hearing on a Rice v Asplund (1979) FLC 90-725 (“Rice & Asplund”) dispute.
The proceedings have had somewhat of a tortuous history to this point. The Father issued proceedings on 3 May 2021 with an initiating application. There were also alive, at some point in the proceedings, a contravention application containing a number of counts. That contravention application was ultimately dealt with in February 2022, when the Father's complaint was dismissed.
In the meantime, the parties were unable to reach agreement about the children's schooling, and the Mother issued an application seeking the Court's order to permit her to change schools. That matter was heard in February 2022 before me, and I delivered ex tempore reasons at the time. Unfortunately, those ex tempore reasons have not yet been settled and provided to the parties. I told the parties when this matter commenced today that I only have a vague recollection of that case, and the fact of it being necessary for the Court to determine the children's schooling, but that I otherwise do not recall or have before me the ebbs and flows of the issues, evidence and submissions in that case.
In short summary, the Father is a 39-year-old transport worker. The Mother is 41 and works in customer service. The parties commenced cohabitation in about 2006. They married in 2010. Their oldest child was born in 2012 (“child 1”); their middle child was born in 2013 (“child 2”); and their youngest child was born in 2015 (“child 3”). The parties separated in May 2016. They were divorced in 2019.
The Father previously issued proceedings on 5 September 2017, and those proceedings were finalised by consent orders on 8 August 2018. Those proceedings related to children's issues and property proceedings. The Father issued the current proceedings on 3 May 2021. At the time of the previous orders, the children were aged six, four and three - that is, a primary-schooler, a kinder-aged, and a pre-kinder-aged child. The children are now 10, eight and seven, and all attending school. The Father issued an amended initiating application on 25 May 2022. I note that the matter had been fixed for an interim defended hearing on the papers previously.
It is agreed that this matter is a preliminary hearing on the papers in regard to the Rice & Asplund question. The first question I must decide is whether the Father's application crosses what can be loosely described as the threshold in the test of Rice & Asplund. The second question I must determine is that if the case does cross the Rice & Asplund threshold, whether I should make interim orders changing the children’s arrangements pending final hearing.
Though I do not recollect it, I am told that I previously fixed the matter for final hearing, or at least not so much fixed the matter for final hearing but gave it a place in the queue of the more than 200 cases in my docket when I dealt with it previously. This was because the matter would otherwise be further back in the queue when I came to deal with this Rice & Asplund issue. I was concerned and troubled about the extent to which the matter can be dealt with within the current guideline of 12 months from start to finish. Clearly, that will not happen in this case.
The applicable law
The parties' counsel, in powerful, persuasive and efficient submissions of very significant assistance to me, essentially had no dispute about the authorities and the law in the matter, but the matter of dispute was the application of that law to this case. A listener may perceive there to be some dispute between Ms Borger's (counsel for the Father) submissions on the law and Mr Glezakos' (counsel for the Mother) as to the issue of the difference between the definitions of “possibility”, “likelihood”, “high likelihood,” and just how high that part of the test (that I will address in a minute) should be. Relatively speaking, that is of minor difference between the parties' counsel and a matter of emphasis.
I will not recite the list of material that each party relied upon, the parties' helpful submissions and the submissions contained in the outline of case, because the matter comes before me in a duty list where I have only four matters. Two have resolved by consent, but there still remains one contested matter that I have given a not before 3.15pm, and it is only 3.05pm. Hence, these reasons will be shorter than what they would be if I had the luxury of a less pressured list.
The parties helpfully addressed me within the prism of the guidelines in which the body or stream of law known as Rice & Asplund can be applied by reference to two significant decisions. Firstly, the matter of Marsden & Winch (2009) 42FamLR1 (“Marsden & Winch”); and the direction of the Court in that case of what a judge in my position must look at in paragraphs 50 and 52, being:
50.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
…
52.In Miller & Harrington (2008) FLC 93-383 Warnick, Boland and Murphy JJ distinguished the rule in Rice & Asplund from procedures such as “striking out” and “summary dismissal”. The Court (at [80]) did not accept that the only way which the rule in Rice & Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest. Importantly, the Court said:
[81] Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a "preliminary" hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.
[82] However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
The parties also raised the case within the prism of paragraph 58 of Marsden & Winch, which was also discussed as if this was synonymous with the test of paragraph 16 of Searson & Searson (2017) FLC 93-788 (“Searson & Searson”), being:
16. In Marsden & Winch the Full Court said:
[57]. In Miller … the court posed the question:
[105] Adapting the language used by Warnick J in SPS and PLS … the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
[58]. That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1) for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
The parties submissions
Turning to the issue applying the prism of Marsden & Winch paragraph 50, I take into account what each party says about that. In broad summary, the Father points to a number of significant matters (but not any longer the geographical difference between the parties). It may be put that he presses that the parental relationship and the exercise of equal shared parental responsibility is proceeding so poorly and, he says, entirely due to the attitude of the Mother. He says further that a number of events have occurred since the orders, that go profoundly to the exercise of equal shared parental responsibility, and those events of themselves and collectively are new facts and circumstances. In terms of the test of Marsden & Winch paragraph 58, he says these matters are prima facie on the Father's evidence, which I must accept have been established. Considering all this, the Father argues that it is necessary for the Court to intervene for the benefit of the children and in their best interests.
At paragraph 16 of his affidavit of 22 May 2022, the Father asserts that the children have a strong desire to spend more time with him, although that relates more to the application to change the orders to equal time.
The current existing orders are:
1.That all previous Orders in relation to the children [child 1] born 2012, [child 2] born 2013 and [child 3] born 2015 be discharged (“the children”).
2.The parties have equal shared parental responsibility for the children.
3.The children live with the Wife.
4.The children spend time and communicate with the Husband as follows:
(a)Each alternate weekend from the conclusion of day care / school Friday until the commencement of day care / school Monday. In the event Friday is a school free day or public holiday, aside from Easter, time shall commence at the conclusion of day care / school Thursday. In the event Monday is a school free day or public holiday, changeover occur on the next day care / school day;
(b)On each alternate Monday, being the Monday immediately after the weekend the Husband does not have care of the children pursuant to subparagraph (a) herein, with the Wife to deliver the children to day care/school and the Husband to collect them from day care when he wishes or otherwise at the conclusion of school Monday until the conclusion of school/day care Tuesday, with the Husband to ensure the children attend school and day care on Tuesday for the Wife to collect that afternoon;
(c)For half of each of the Victorian gazetted school term holidays as agreed, but failing agreement the second half, from 5:00pm on the middle Saturday of the said holidays until commencement of day care and school the next term;
(d)During the long summer holidays as follows:
(i)In accordance with subparagraphs (a) and (b) herein until 5:00pm on Christmas Eve each year;
(ii)In even numbered years from 5:00pm on Christmas Eve until 10:00am on Boxing Day;
(iii)In even numbered years, from the date representing the mid-point between Boxing Day and the date the school resumes until 5:00pm on the day before the resumption of the new school year;
(iv)In odd numbered years from 10:00am on Boxing Day until the mid-point of the remaining school holiday period;
with the children to be in the care of the mother at all other times between Christmas Eve and the resumption of school each year.
(f)On Father’s Day from 9:00am until 6:00pm, if it is not a weekend when the children are already with the Husband pursuant to these Orders, with the Husband’s time to be suspended for the same period on Mother’s Day each year, in the event it coincides with the Husband’s time;
(g)By telephone each Thursday the children are not otherwise spending time with the Husband between 6:00pm and 6:30pm. In the event that it is not practicable for the Husband to speak to the children during the specified time, the Wife will advise him in advance and propose an alternative time for him to speak to them;
(h)Such further and other times as agreed between the parties in writing (including sms).
5.The Husband’s time with the children pursuant to Orders 3 (a) and (b) herein be suspended during all school term holiday periods and recommence when school resumes as though the suspension had not occurred.
6.As far as practicable changeover for the Husband’s time with the children occur at the children’s day care or school. In the event that changeover occurs on a day when the children are not attending day care or school, changeover occur in the car park of [[B School]] car park, unless otherwise agreed.
7.Both parties shall ensure they facilitate the children phoning the other parent when they wish to speak to that parent and that the children telephone the other parent on that parent’s birthday each year, if the children are not in that parent’s care.
8.The parties advise the other and at all times keep the other advised of their current residential address, email address and contact telephone number.
9.Each parent shall immediately advise the other in the event of the children or any of them suffering an illness or injury requiring medical attention and shall provide the other with the name and contact details of any treating doctor or health professional and authorise by this Order the other parent obtaining information from the doctor or health professional.
10.Both parties be and hereby authorised to obtain all information ordinarily disseminated to parents by the children’s day care or schools and both are at liberty to attend any parent teacher interviews, school concerts, sports days or any other school events at which parents ordinarily attend. Both parties shall obtain school photo orders forms, school reports, medical reports and the like at their sole expense, if applicable.
11.Both parties shall facilitate the children’s attendance at all schooling events, sporting events, social events and agreed extracurricular activities which coincide with their care.
12.Both parties advise the other in the event the children are too unwell to attend at school or day care and advise the other, via email or SMS, of any attendances by the children, in advance if possible, upon any medical practitioner or allied health professional and advise the other as soon as practicable of the outcome of any appointment.
13.The Husband and the Wife be and are hereby restrained from:
(a)denigrating the other in the presence or hearing of the children and shall use their best endeavours to prevent any other person from doing so; and
(b)committing any form of family violence against or inflicting physical discipline upon the children and shall ensure no other person does so.
14.Save in the event of an emergency, the parties shall attend upon the following medical practitioners for treatment for the children:
(a)[Medical Centre 1];
(b)[Medical Centre 2];
(c)[Medical Centre 3].
15.As far as practicable, the parties shall communicate via SMS or email, save in the event of an emergency.
16.Both parties will advise the other in the event they intend to travel with the children outside of the State of Victoria during periods of their care, with such advice to be provided no less than seven days prior to the proposed travel and to include the details of the address the children will be staying at during the period of travel.
17.In the event either party plans to travel overseas with the children, they shall provide the other with 28 days’ written notice, via email, of their intention to do so, with such written notice to include a detailed itinerary of their departure and return dates, the country or countries the children will be travelling to, the approximate dates on which the children will arrive and depart each country and details as to the accommodation for the children while they are travelling.
18.The Wife shall hold the children’s passports and shall provide them to the Husband 14 days’ prior to the children’s overseas travel with the Husband, with the Husband to return the passports to the Wife forthwith and no less than 14 days after the children return from overseas. Both parties shall forthwith do all things necessary to renew the children’s passports, when they expire, and shall share equally in the cost of such renewal.
19.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The changes that the Father now seeks are:
1. All previous orders in relation to the children:
(a) [Child 1], born 2012
(b) [Child 2], born 2013
(c) [Child 3], born 2015
(children)
be discharged.
2. The parties have equal shared parental responsibility for the children and for that purpose:
(a) Neither party be permitted to enrol the children or any of them in a school other than their current school without first obtaining the express written consent of the other;
(b) Neither party be permitted to authorise the children or any of them attending upon a psychologist or psychiatrist for assessment or treatment without first obtaining the written consent of the other;
(c) Neither party be permitted to authorise the children or any of them receiving any irreversible medical treatment and/or undergoing any operation without first obtaining the written consent of the other; and (d) Neither party be permitted to facilitate the children or any of them participating in any religious ceremony which confers upon that child a religious position, right or sacrament (for example — baptism, first holy communion, confirmation, anointing ceremony) without first obtaining the written consent of the other and inviting the other to attend such event including details as to the time and date of the event.
3. If the parties are unable to reach agreement as to how to exercise parental responsibility jointly, the following process shall apply:
(a) The father shall provide the mother with a written outline as to his preference in respect of the decision to be made including the basis upon which his preference has been arrived at ("the father's preference");
(b) Within 7 days of receiving the father's preference, the mother shall provide the father with a written outline as to her preference in respect of the decision to be made including the basis upon which her preference has been arrived at ("the mother's preference"); and
(c) If after the exchange of preferences the parties cannot reach agreement within a further 7 days, the parties attend at their equal and shared expense upon an agreed FDR practitioner for the purpose of receiving assistance in negotiating an outcome for the children; and
(d) If the parties cannot agree as to the identity of the FDR practitioner, the FDR practitioner shall be as chosen by the mother from the father's list of three.
4. The children live with the father and the mother on a "week about" basis with changeovers to occur at school each Monday, with the parent whose time is concluding to drop the children to school at the beginning of the school day, and the parent whose time is commencing to collect the children at the end of the school day.
5. The "week about" arrangement in order 3 4 shall continue throughout the end of Term 1, 2 and 3 school holidays.
Long summer holidays
6. Notwithstanding any other order, the children spend time with the parents during the long summer holidays as follows:
(a) In 2022/23 and each alternate year thereafter, with the mother from after school on the last day of school term until 9 am on 9 January, and with the father from 9 am on 9 January until the start of school at the beginning of term.
(b) In 2023/24 and each alternate year thereafter, with the father from after school on the last day of school term until 9 am on 9 January, and with the mother from 9 am on 9 January until the start of school at the beginning of term.
7. For the avoidance of doubt, following the long summer holidays, the children will commence spending time with the mother pursuant to order 3 4 from after school on the first day of Term 1 in 2023 and each odd numbered year thereafter and will commence spending time with the father pursuant to order 3 4 from after school on the first day of Term 1 in 2024 and each even numbered year thereafter.
8. When one or more of the children have a longer summer holiday than the other children, the school holidays are deemed to commence on the latest day any of the children ends school for the year and conclude on the first date any of the children start school the following year.
Special occasion time
9. Notwithstanding any other order, the children shall always spend time:
(a) With the father on Father's Day, from 9 am until the commencement of school the following day.
(b) With the mother on Mother's Day, from 9 am until the commencement of school the following day.
(c) With the father on the father's birthday, from after school (or 3 pm) on the father's birthday until before school (or 9 am) the next day.
(d) With the mother on the mother's birthday, from after school (or 3 pm) on the mother's birthday until before school (or 9 am) the next day.
Communication
10. The children shall have telephone or video-call communication with the parent they are not living or spending time with at all reasonable times requested by the children, with the parent the children are living or spending time with to assist the children (if necessary) to place a call to the other parent.
11. Both parties are hereby restrained from recording the children's communication with the other parent.
12. Each parent, when engaging in written communication regarding the children to third parties, such as schools, medical practitioners, extra-curricular activity providers or any other third party excluding lawyers, must do so wherever possible in electronic form and copy in the other parent on each communication.
Changeover
13. Should the usual Monday changeover day during school terms and term school holidays be a public holiday or other non-school day, changeover will occur at 3 pm.
14. Changeovers shall always occur at the children's school/s, but where changeovers occur on a day where the children or any of them are not attending school, changeovers shall occur outside [[B School]] … until 31 December 2027. From 1 January 2028, where changeovers occur on a day where the children or any of them are not attending school, changeovers shall occur outside the agreed high school the children will be attending.
Medical
15. Each party shall notify the other immediately of any serious injury or illness requiring the children, or any of them, to attend a hospital, and the detail of which hospital the children or child is attending.
16. Each party shall notify the other by telephone as soon as practicable (and always within 24 hours) of any other illness or injury the children or any of them may suffer in their respective care and the detail of any medical practitioner that the child has attended upon and do all such acts and things to authorise the other parent to discuss the children/s diagnosis, prognosis and treatment with his or her treating health practitioner.
17. Each party will be at liberty to attend any specialist or allied health medical appointment for the children or any of them and attend at any hospital where the children or any of them are in the emergency department or have been admitted.
18. Each party must communicate with the other party before 12 noon if the children or any of them are not attending school due to illness.
19. Should the children or any of them fall unwell at school on a changeover day, the parent due to commence spending time with that child/ren that afternoon shall be entitled to and responsible for collecting the child/ren from school upon the request of the school for the child/ren to leave early.
20. Should the children or any of them fall unwell prior to attending school on a changeover day, the child/ren shall remain with the parent he or she was already spending time with until 3 pm that afternoon.
Schooling
21. Each of the children shall remain at [[B School]] until the completion of their primary schooling at the end of Year 6.
22. Each of the children shall be enrolled at a high school to be agreed for the entirety of their high schooling from Years 7 to 12.
Travel
23.Each party will be at liberty to take the children out of Australia for holiday during the children's time with them, provided:
(a) The children are not taken to an overseas destination where the Australian government warning for that destination is 'Reconsider Travel' or Do Not Travel'
or equivalent warning.
(b) The party taking the children overseas (travelling parent) provides the other party with no less than 30 days' written notice of the planned travel.
(c) The travelling parent provides the other party with a detailed travel itinerary and contact details for the children while they are overseas, including flight numbers, dates and times for all airline travel and the towns/cities in which the children will be staying on each day of the holiday.
(d) The travelling parent facilitates communication between the children and the other parent while the children are overseas.
24.In addition, each party will be at liberty to take the children out of Australia for holiday for a four week block period on a maximum of one occasion each year, on the following conditions:
(a) The parent proposing the travel must provide the other parent with no less than 56 days' written notice of their intention to travel.
(b) The proposed travel period must include a school holiday period the children would have spent with the parent proposing the travel.
(c) The children will spend make-up time with the non-travelling parent for all time missed in the four weeks before or the four weeks after the travel period.
(d) The conditions in orders 22(a), 22(c) and 22(d) of these orders are also met.
25.In addition, each party will be at liberty to take the children out of Australia in the case of the serious illness or imminent death or funeral of a family member (including family members of the parties' partners) who lives overseas, for the purpose of visiting the family member and/or attending the funeral, with the following to apply:
(a) The parent proposing the travel must provide as much notice as possible to the other parent of the intention to travel.
(b) The non-travelling parent must not unreasonably withhold the children from travelling as proposed.
(c) Should the travel be occurring with the father, the mother must provide the children's passports to the father forthwith after being advised of the intention to travel.
(d) The children will spend make-up time with the non-travelling parent for all time missed in the four weeks after the travel period.
(e) The travelling parent provides the other party with a detailed travel itinerary and contact details for the children while they are overseas, including flight numbers, dates and times for all airline travel and the towns/cities in which the children will be staying on each day of the holiday.
(f) The travelling parent facilitates communication between the children and the other parent while the children are overseas.
26. Each party will do all things as may be required to obtain and renew Australian passports for the children, with the following process to apply:
(a) Either parent may initiate the passport renewal process.
(b) When the other parent receives a partially completed passport renewal form/s for the children from the renewing parent, the other parent must finalise completion of their required section and return the form/s to the renewing parent within 14 days of receipt.
(c) The renewing parent must lodge the renewal forms and pay the cost of renewal within 14 days of receipt of the fully completed documents.
(d) The renewing parent must provide a copy of the receipt for the cost of the renewals to the other parent within 28 days of obtaining the new passports, as well as their bank details to receive reimbursement.
(e) The other parent must reimburse half the cost to the renewing parent within 14 days of receiving the receipt, via direct bank deposit.
27. When the children are not travelling overseas, the mother will hold the children's passports provided that she will make the passports available to the father at least 30 days prior to any planned overseas travel by the father with the children, and for the purpose of the father obtaining any visas for the children to travel, and the father will return the passports to the mother within 7 days of the children returning from overseas travel.
28. The mother shall obtain and provide to the father a photocopy of the children's passports within 7 days of receiving new or renewed passports of the children.
Ancillary orders
29. Each party shall keep the other advised of their current residential address, contact telephone number and email address.
30. Without admission of the necessity for same, the parties be and are hereby restrained from:
(a) Denigrating one another or any other member of the children's family within the presence or hearing of the children, or permitting any other person to do so.
(b) Discussing these proceedings in the presence or hearing of the children or permitting any other person to do so.
(c) Committing any form of family violence against or inflicting physical discipline upon the children or permitting any other person to do so.
31. Each party will be entitled to receive all school newsletters, notices, reports, photograph order forms and other documents for the children that are ordinarily provided to parents and to the extent it may be necessary, each party will authorise the children's school/s to provide such documents to the other party.
32. Each party will be at liberty to attend school events to which parents are ordinarily invited, regardless of whether the children are in their care during the event.
33. Neither party may enrol the children in any extra-curricular activities requiring the attendance of the children during the time the children are in the care of the other party, without the other party's written consent.
34. Each party will be at liberty to attend the children's extra-curricular events, such as sporting competitions, concerts, etc. regardless of whether the children are in their care during the event.
35. For the purpose of receiving information about the children's extra-curricular activities:
(a) The parties shall utilise the email address [email address 1], to which both will have full access, to be given to all providers to receive all information, invoices, draws and other necessary correspondence about the activity/ies.
(b) Neither parent shall be permitted to delete any received email or sent email from the email address, without the written consent of the other parent.
(c) Should a provider utilise an app or opt-in service to provide information about the activity, each parent shall do all things necessary to ensure that the other parent is provided with their own separate log on to the app (if available) or provide the relevant password to the app if only one log on is available.
36. Each party will be at liberty to provide a copy of these orders to any child care or school the children attend, or any medical practitioner treating the children, and these orders are authority for any of those organisations or persons to communicate with both parents in relation to the children.
37. Each party will ensure that the other parent is listed as the first emergency contact and next of kin with any organisation that requires an emergency contact or next of kin, before listing any other person as an emergency contact or next of kin.
38. On any occasion the parties agree or are required to equally contribute to the cost of an item or service for the children, they agree that the following process shall apply:
(a) The parent paying the cost at first instance (paying parent) will pay the full cost.
(b) The paying parent must provide a copy of the receipt for the cost to the other parent within 28 days of paying the cost, as well as their bank details to receive reimbursement.
(c) The other parent must reimburse half the cost to the paying parent within 14 days of receiving the receipt, via direct bank deposit.
In terms of the equal shared parental responsibility trouble, as being changed facts and circumstances, the Father points to many different events and circumstances of disagreement between parties. In these short reasons I am only touching on the most significant matters that he points to in his affidavit of affidavit of 22 May 2022 and events he claims occurred, being:
·He is not appropriately listed as next of kin to obtain medical information, and that he has real difficulties obtaining medical information (paragraph 18).
·Despite the detailed orders about provision of medical information, child 1 was attending a physiotherapist and a chiropractor regularly for 12 months before he found out about that by the child mentioning them to him in conversation (paragraph 22(b))
·Being informed of a head knock to child 2, and being told that it was concussion, a broken wrist and a visit to the hospital, but not being informed that the head injury was actually a brain bleed. He asserts that that is a significantly more serious injury than a concussion, and that child 2’s welfare was at risk by he not being aware of that matter.
·The Mother told him, as a result of the conflict between them about medical matters, that she will ensure that any further appointments do not occur in any period when the children are with him.
·A difficulty with obtaining information about the early learning centre, detailed at paragraph 33.
·Failure of the Mother to provide him with the children’s passports, and he sets out a saga in regard to the passports at paragraph 49 to 57, when the existing orders provide that that is to be done promptly and indeed forthwith.
·The very poor relationship and communication between the Mother's new partner, Mr F, and the Father's new partner, Ms G, where he asserts that Mr F refuses to speak to Ms G at any changeover.
·The difficulty he has speaking to the children on the telephone when telephone communication is contemplated by the orders, and he alleges that the Mother has taken to recording those phone calls when he does speak to the children,
·The Mother's stated position to him, as set out at paragraph 69, that “the orders do not work for the kids, so we will have to do what works for them”.
The Father also raises the baptism as a large issue, as set out in paragraphs 28 to 31 of his affidavit filed 22 May 2022. Child 3 was baptised at five years of age in November 2020 at Church A. That church is nearby or adjacent to the children's current school, and the school the subject of the previous proceedings. It is not disputed that the Father is on the board of that school. Notwithstanding his involvement with the school, he was not informed of the fact of the baptism, that it was coming up or that it had occurred, and he learnt of these events in detail by the issue of subpoena. It is open to find that the lack of provision of that information not only impacted on the Father and his inability to share that event but also impacted on child 3’s ability to share and be supported in that event by his Father.
I acknowledge that it was not necessary for the Mother to engage in all of these matters in her responding affidavit as whether she agreed or not. It was necessary as a matter of law that I take the Father's account unless it was ridiculous, nonsensical or internally inconsistent. The Mother says that these are not new facts and circumstances and points to his allegations in his supporting affidavit of the proceedings that he issued back in 2017, including:
6. I have had no option but to file proceedings in this Honourable Court so that I can be a regular part of my children's lives. At the moment the Wife has full control over the children and basically tells me when I can have the children.
…
11.This is in relation to a Parenting Plan the Wife drew up herself which is controlling and dictatorial and has been the catalyst for me issuing these proceedings.
…
13. Decisions regarding the children are not jointly made, but made unilaterally by the Wife. I am rarely informed when the children are taken to the doctor or when they are ill and I had not involvement or discussion with the Wife about [child 1’s] primary school enrolment.
14.The Wife threatens and tries to intimidate and blackmail me into agreeing with her demands when things do not go her way. The Wife is a compulsive liar and her messages about the children can also be inconsistent.
…
16.An example of her lying, was when she told me on Thursday, 13 October 2016 that she could not attend one of the meetings we had organised because our daughter [child 1] had been suspended from daycare and she was looking after her. As I was concerned as to why [child 1] had been suspended, I contacted the daycare and asked why [child 1] had been suspended? I was told that she had not been suspended and was in attendance that day. I then went to the daycare to see [child 1] and to speak to her. I sent the Wife a photograph via text message of [child 1] at daycare to show her that I knew she had lied to me.
The Mother's position is that she factually disputes a number of the complaints the Father makes, but on this test of the Rice & Asplund, I will not deal with those factual disputes, although I acknowledge them. The Mother states that these are not changed facts and circumstances. She says the parents had an appalling parental relationship before the 2018 final orders and they still have. She claims this is just more of the same, and hence, there are no new facts and circumstances.
Application of the law
Change of circumstances
As to whether there are new facts and circumstances, I must apply the test of Marsden & Winch, paragraph 50(1):
…the past circumstances, including the reasons for the decision and the evidence upon which it is based.
I do take into account the Mother’s submissions about the Father's opinion about the state of the relationship previously.
What was significant in Ms Borger's submissions was that the parties' applications in regard to the children's matters at that time were near as identical. I note that in fact that in the application and the response that I was referred to as part of the Mother's tender bundle, each parent sought that the Father spend significant and substantial time, alternate weekends, Friday to Monday, but in fact the orders that were made in 2018 provided the Father with an additional Monday night in the off week.
I also acknowledge the persuasiveness of Mr Glezakos' submission that there is already an order for equal shared parental responsibility and some qualification of it. Nonetheless, I do not accept that the events and accusations referred to above regarding equal shared parental responsibility and attitudes to shared parenting arrangements were within the contemplation of the parties or the Court that made the final orders in 2018.
The Mother's case in regard to those events is that the conflict between the parties is due to the Father's difficult attitude and rigidity and antagonism to her. I am unable to determine on this hearing whether or not that is the case. However, I do not accept that the Father's account of those events were matters that would have been within the contemplation of the parties at the time they made orders for equal shared parental responsibility and shared care.
The further matter that I take into account is that on the Father's case, the children have expressed, at least to him, a strong desire to spend more time with him.
Looked at in terms of the first limb of the Marsden & Winch test at paragraph 50, or the prima facie change of circumstances, I find that there has been a prima facie change of circumstances on the Father's evidence mentioned above.
Likelihood of orders being varied
Looking at Marsden & Winch, paragraph 50(2), I must look at:
…whether there is a likelihood of the orders being varied in a significant way, as a result of a new hearing.
I find that there is a sufficient likelihood, for the purposes of the Rice & Asplund test, of the orders being varied in a significant way as a result of the new hearing. There may be orders for week-about, as the Father seeks, or some further time to the existing parenting orders.
I accept Mr Glezakos' point that the likelihood referred to there must be more than a mere possibility. I accept that. However, that likelihood does not require me to be satisfied that myself or any other judge will make the changes, but that there is a likelihood. In terms of assessing that likelihood, I take into account that at a hearing in the circumstance of there currently being an order for equal shared parental responsibility, the equal time orders that the Father seeks is a matter that must be considered, and considered seriously, at the time of that application. Parallel with that, the presumption of equal shared parental responsibility will be alive in that case, which will lead the Court to seriously or properly consider equal time. Whether or not that is in the children's best interests is a separate matter.
I also take into account the issue of the conflict and lack of cooperation between the parties. Ms Borger says that I cannot take that into account because that is a matter for the social scientists, and indeed that is correct to one extent. Nonetheless, I have often heard over the last 30 years or so from judges and social scientists about the issue of conflict contraindicating equal time. I have taken that into account, and that contained within the Father's case, on one view of the way forward, there is a contradiction. Nonetheless, I find that there is a likelihood of some change.
The nature of the likely changes weighed against detriment
I now turn to Marsden & Winch, paragraph 50(3): that the nature of the likely changes must be weighed against the potential detriment.
The submissions of Ms Borger subtly included that the parties had not previously been through the full washing machine of family reports, contested evidence, cross-examination and reserved judgment. They had reached agreement in the context of property and children's proceedings, where their actual applications for the children's orders were close to identical. The point is the children have not been through what can be a troubling process, or what can be described as the evil of family law proceedings, as discussed in Searson & Searson:
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.
On one view, at that time the children were protected from the poor relationship between the parties. I am not proceeding on that basis. I do not have that confidence in the parties that the children would have been protected.
I must take into account that the children will be interviewed for a family report, and that may be troubling to them. I balance that against the very valuable information that the family report is likely to provide to the parents and to the Court. I take into account that the expert conducting those interviews will be just that, an expert, and that there will inevitably be some trauma to the children. That will largely come from the manner in which the parents deal with it from here on in.
The potential benefit of any new orders to the children may include a better set of rules to deal with things such as religious events, communication of medical information, communication of educational matters, telephone calls, whether telephone calls are going to be recorded or not, and/or the manner in which telephone calls can occur. I find that the likelihood and the nature of those possible changes, including the likelihood of further time, are sufficient to compensate for the disruption caused by the significant re-litigation.
To answer the case in the terms of paragraph 58, I find that there is a prima facie case of changed circumstances, and I find that there has been a sufficient change of circumstances to justify embarking on the hearing.
Interim application
Turning to the interim application of a further night, as the Father seeks, I apply paragraph 82 of the decision of Goode & Goode (2006) FLC 93-286. Rather than accepting the Father's case or the Mother's, I must now be very circumspect about matters in dispute between the parties. I cannot proceed on the basis of the Father's account that the poor communication and difficulties in his attendance and involvement are solely down to the Mother and not down to him at all. The Mother's case is that he is difficult, and this is a reaction. She also posits that the baptism event or lack thereof must be looked at in terms of the COVID difficulty, notwithstanding the ability of people to attend electronically.
Taking into account all of those difficulties and applying Part VII and giving very short reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) on the interim application, I am not persuaded that it is in these children's interests, without the benefit of a family report, to make a change to the quite longstanding current arrangement.
In terms of the other interim orders that were sought on the interim hearing, it is put that there should be a private family report and the costs be borne equally by the parties. Mr Glezakos did not speak against that provision in the event that I did order that they have crossed the threshold, but I will just clarify that (the parties later indicated agreement to Ms E preparing a privately funded family report).
I will now fix the matter for final hearing and put it in the place that was reserved for it in the event I determined the threshold had been crossed, and that hearing is in June 2023. Had I not put it there, I would next have unfilled territory to list the case in September 2023. Having heard the range of factual disputes in the matter that will inform the further hearing of the matter, I am inclined to think that it would be a three-day hearing or that I should contemplate three days. If it was only one or two days, I could try and bring it on earlier in an overlisting, or I might be able to squeeze it in where something has already fallen out by settlement. I am going to leave it listed in June 2023.
I accept Mr Glezakos' position that with the benefit of the family report, there should be liberty to apply in regard to whether or not there should be a change on the interim, but I will not be making those orders at the moment. I will make directions for the filing of material. They will be 56 days, 28 days, and 7 days as to the filing of material, including that prior material will not be permitted to be relied upon.
I will not fix the matter for further interim hearing. I am concerned at the gap from May 2021, when these proceedings started, to a final hearing in June 2023, and hence, that is why I will also order that there be liberty to apply following the release of that report, in the circumstances where that is a long time between drinks for an interim matter. On the Father's case, there is good reason to revisit that on an interim basis, but not on the Mother's case, and I do not want that being determined by default because of the length of cases in my list. I will make an order that all interim applications are otherwise dismissed.
The other matter that appears to me is that because of how long it has been and the contested nature of the proceedings, whether I should make an order for court-based family dispute resolution conference following Ms E’s report, but I have not heard submissions on that. I would give you the chance to talk to your clients about that and the consequence of it. I do not want that being a decision made on the run. I do not want them to catch them unawares; I want them to make that decision with the assistance of your advice about what that involves. And then, of course, it appears to me we would not do the big kahuna with the registrar and the court child expert; it would be a dispute resolution conference with a court child expert involving the parents with the benefit of the reports.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 19 July 2022
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