Long and Long (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

LONG & LONG (No.2)

[2017] FCCA 3118

Catchwords:
FAMILY LAW – Parenting – Contravention application – contravention application dismissed – variation of past final parenting orders.

Legislation:

Family Law Act 1975, ss.70NAC, 70NAE, 70NBA, 60B, 60CA, 60CC

Cases cited:

Long & Long [2014] FCCA 1734

Rice & Asplund (1979) FLC 90 – 725

Tindall & Saldo [2015] FamCAFC 1

Applicant:

MR LONG

Respondent:

MS LONG

File Number:

PAC 4450 of 2012

Judgment of:

Judge Newbrun

Hearing date:

29 May 2017

Date of Last Submission:

30 November 2017

Delivered at:

Parramatta

Delivered on:

14 December 2017

REPRESENTATION

Applicant:

Self-represented

Respondent:

Self-represented

ORDERS

The mother’s application that she have sole parental responsibility for the children, referred to in her Reply filed 4 March 2016, is dismissed.
The father’s Contravention Application filed 26 July 2016 is dismissed.
Orders 15, 16 and 17 of the Court’s orders of 25 June 2014 are varied such that those orders will now provide as follows:
Order 15: commencing 15 December 2017, once in every 3 month period, the father is permitted to travel to Queensland with the children for a block period of up to 5 nights (subject to an extension of this 5 night block period during, and only to the extent of, the father’s permitted school holiday time with the children) upon the father giving at least 28 days’ notice of the date of travel to the mother.
Order 16: Any travel to Queensland authorised by order 15 above shall only occur:
(a)during any school holiday period that the father is entitled to spend with the children pursuant to order 8, or
(b)during the time that the father is entitled to spend with the children pursuant to order 7 g), with the father being permitted to extend such time in order 7 g) (so as to total 5 nights) until the commencement of school Thursday in the first week.
Order 17: For the purpose of orders 15 and 16, the father is to provide to the mother the address and contact details of any place where he and the children will be staying throughout the period of travel.

THE COURT NOTES THAT:

At the hearing, the Court notes the father was content that the mother be permitted to authorise the children to receive the usual immunisations.

IT IS NOTED that publication of this judgment under the pseudonym Long & Long (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4450 of 2012

MR LONG

Applicant

And

MS LONG

Respondent

REASONS FOR JUDGMENT

Introduction

The children the subject of the present applications before the Court are X born (omitted) 2009 and Y born (omitted) 2010.
The applications presently before the Court are:
a)The father’s Contravention Application filed 26 July 2016;
b)The mother’s Reply filed 4 March 2016, specifically, the mother’s proposed orders that:
i)the mother have sole parental responsibility for the children; this proposed order is opposed by the father;
ii)orders 15, 16 and 17 of the orders of the Court made 25 June 2014 be discharged;
iii)pursuant to the slip rule, the orders of the Court made 25 June 2014, being orders 8, 19, 20 be amended; these proposed amendments are consented to by the father. A proposed amendment by the mother pursuant to the slip rule discharging order 21 is not consented to by the father. (The Court notes in this context that Neville J corrected orders 8 and 19 recently when his ex tempore judgment was engrossed. The Court, in light of its determination stated later in these Reasons, and its proposed orders varying orders 15-17, does not deem it necessary to alter existing order 20)
The father relied upon his affidavit filed 26 July 2016, and his Further Amended Response filed 17 May 2016. He filed a written submission on 10 October 2017.
The mother relied upon her affidavit filed 3 March 2016, and her Reply filed 4 March 2016.

Contravention application

There were 4 alleged contraventions pleaded by the father against the mother of the Court’s orders of 25 June 2014.
The first two alleged contraventions pleaded contraventions of order 15 of the Court’s orders of 25 June 2014, on 17 March 2016 and 16 June 2016 (these two alleged breaches of order 15 asserted that the mother, without reasonable excuse, had refused to allow the father to spend time with the children).
The second two alleged contraventions pleaded breaches of order 26 of the Court’s orders of 25 June 2014 on 8 August 2015 and 7 September 2015 (specifically, the father alleged that the mother had been critical of the father while in conversation with the children, being allegedly in breach of order 26 being a non-denigration order).
The mother pleaded, in relation to all alleged conventions, that she had not contravened the relevant orders.
The Court then proceeded to find that the father had made out a prima facie case in relation to all 4 alleged contraventions, based upon his affidavit. The mother had chosen not to cross-examine the father.
The mother then sought to rely upon her affidavit. She was cross examined by the father.
The parties then made oral submissions.

Relevant statutory provisions

Section 70NAC of the Family Law Act1975 provides:
Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or

(b) otherwise--he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or

(ii) aided or abetted a contravention of the order by a person who is bound by it.

Section 70NAE of the Family Law Act 1975 provides:
Meaning of reasonable excuse for contravening an order
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(5) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(7) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

In relation to the 2 alleged contraventions of order 15 of the Court’s orders of 25 June 2014, it is helpful to set out the terms of orders 7 to 18 of the Court’s Orders of 25 June 2014:
Time with
7. Subject to any other agreement in writing between the parties, the children are to spend time with the Father in a fortnightly cycle as follows:
From the date of these orders until 7 October 2014:
(a) From 9:00am Sunday until 3:00pm Monday in the first week; and
(b) From 9:00am until 3:00pm Monday in the second week.
From 7 October 2014 until X commences school or until 27 January 2015 whichever is the soonest:
(c)From 9:00am Sunday until 3:00pm Monday in the first week; and
(d) From 9:00am Monday until 9:00am Tuesday in the second week.
From the time X commences school until 13 July 2015:
(e)From 4:00pm Saturday until the commencement of school Monday in the first week; and
(f) From after school Monday until the commencement of school Tuesday in the second week.
From 13 July 2015 and thereafter
(g) From 4:00pm Saturday until the commencement of school Tuesday in the first week; and
(h) From after school Monday until the commencement of school Tuesday in the second week; and
(i)Any additional time that may be agreed between the parties.
8. Commencing from the school holiday period falling at the end of term 1 in 2015, the time referred to above is suspended during all school holiday periods and instead the children will spend time with the Father as follows:
During the school holiday periods falling at the end of terms 1, 2 and 3 in 2015;
(a) For a block period of four (4) days in each of the school holiday periods on dates as agreed and failing agreement during the first week of each of those holiday periods.
During the school holiday period falling at the end of term 4 in 2015:
(b) For a block period of 10 days on dates as agreed and failing agreement during the first 10 days of the school holiday period.
During all school holiday periods thereafter
(c)For half of each school holiday period on dates as agreed and failing agreement the children to spend the first half of the school holiday period with the Father in even numbered years and the second half of the school holiday period with the Father in odd numbered years.
The Court notes for the sake of clarity that it is intended by Order 8(c) that the children will spend Christmas Day with the Father in even numbered years and with the Mother in odd numbered years.
Changeovers
9. For the purpose of implementation of orders 7 and 8:
(a) Until the X commences at school, all changeovers are to occur at (omitted) or in the event of inclement weather, at (omitted) Shopping Centre with the Mother to send an SMS text message to the Father to confirm the changeover point;
(b) Once X commences at school the school will be the changeover point for all time that commences at the end of school or concludes at the beginning of school and for all other periods, changeovers are to occur at (omitted) or in the event of inclement weather, at (omitted) Shopping Centre with the Mother to send an SMS text message to the Father to confirm the changeover point.
Special events and dates
10. If Mother's Day falls on a weekend when the children would otherwise be spending time with the Father, the Father's time is suspended for that weekend.
11. If Father's Day falls on a day when the children would otherwise not be spending time with the Father, the children are to spend time with the Father from 9:00am to 6:00pm each Father's Day.
12. If the children are not otherwise spending time with the Father on X’s birthday, they will spend time with him for 2 hours on her birthday.
13. If the children are not otherwise spending time with the Father on Y’s birthday they will spend time with him for a period of up to 2 hours on her birthday unless the children are travelling overseas in which case the children are to spend 2 hours with the Father on a day during the week prior to departure.
14. If the children are not otherwise spending time with the Father on the Father's birthday, then the children will spend time with him for 2hrs on his birthday.
15. Commencing from 7 October 2014, once in every three month period the Father is permitted to travel to Queensland with the children for a block period of up to 5 days upon the Father giving at least 28 days’ notice of the date of travel to Mother.
16. Any travel authorised by order 15 above is to occur at a time including a day or days on which the Father is already spending time with the children.
17. For the purpose of implementing order 15 above the Father is to provide to the Mother the address and contact details of any place where he and the children will be staying throughout the period of travel.
18. The Mother is permitted to travel to (country omitted) with the children as follows:
From the date of these orders until X commences school:
(a) For a block period of up to two (2) weeks upon giving the Father at least 28 days’ notice of the date of travel to the Mother with the Father's time with the children to be suspended during the period of travel.
From the date X commences school:
(b) For up to half of each school holiday period.
The father’s evidence was that on 5 October 2015 he sent a text message to the mother setting out the dates for the 2016 year when he proposed to take the children to Queensland for the five day blocks, pursuant to order 15 and 16 above. The text message stated: “Dates for 5 day blocks to Queensland 2016. March 24 – 28, June 16 – 20, August 25 – 29, October 7 – 11.”
The father’s affidavit states that the mother refused to allow him to take the girls to Queensland from March 24 to March 28 2016, and further that she “blocked” his proposal to take the children with him to Queensland from 16 June 2016 to 20 June 2016. This is not disputed by the mother. However, she asserts in her affidavit, in effect, that order 15 and 16 above, properly construed, did not permit the father to take the children to Queensland on these proposed occasions.
In paragraph 52 of the mother’s affidavit, she states, inter alia, that on 14 February 2016, she had a conversation by text message exchange with the father as follows:
Mother: You have given dates for the 5 days in Queensland from 24 March to 28 March. This is Easter and it is meant to be my weekend and 7 to 11 October is in my week of the holidays on the first two days of Terms 4.
Father: Regarding Easter weekend, yes I know it would normally be your weekend. The point of the 5 days blocks are that I get to take them when it would normally be your time so long as I give a month’s notice and it overlaps a day of mine. The Monday night and that weekend is the days that I have them, hence I overlap my 5 days with it. Regarding the October dates, again I’m overlapping the five days with the Monday I would have them.
Mother: You will not be taking my holiday time with the girls…
Father: … Are you calling the Easter weekend school holidays too?
Mother: October school holidays
Father: okay. So you are fine about the Easter weekend then?
Mother: Not very happy that every 5 day block to Queensland you have chosen to take on my weekends are not your own.
During the proceedings, the father conceded that his proposal to spend time with the children in Queensland from 16 June to 20 June 2016, which included the weekend of 18 and 19 June 2016, was a weekend that the children were due to spend time with the mother, but he submitted that pursuant to orders 15 and 16 that was his legal entitlement on a proper construction of orders 15 and 16.
During oral submissions, the father conceded that on his construction of orders 15 and 16, he was entitled to take the children to Queensland for 5 days, once in every three month period, at least in the following circumstances:
·provided the five day period overlapped with any single day that the father was otherwise entitled by the orders of 25 June 2014 to spend with the children (eg a day during school term time; a day forming part of his half school holiday period entitlement; a special day such as Father’s Day) then he was entitled to take the children to Queensland for a block period of up to 5 days (including the single day referred to above).
Again, on the father’s construction of orders 15 and 16, he could take the children to Queensland during time that the children would otherwise be spending with the mother, and when the children would otherwise be attending school.
The Court has perused the Reasons for Judgment of Neville J of 25 June 2014. This Court cannot discern any matter of significance in those Reasons which lends support to the construction sought to be made out by the father relating to orders 15 and 16.
In paragraph 49 of those Reasons, the recommendations of the family report writer Dr S were referred to by the Court and which included the following recommendations:
a)That the children spend every second weekend with their father from Saturday afternoons after his work responsibilities are completed until Sunday evening so that the children are home the evening before school (as they will be attending school in the future).
b)That the children spend periods of up to 3 days, including two overnight stays with their father during any holiday periods, such as Christmas, Easter etc, building up to half of all school holidays as they age. Any blocks of overnight stays longer than this should not occur until the children are older and able to handle longer separation from their mother, say at age 7.
c)That the children spend Fathers Days and Mr Long’s birthday with their father, as well as half of Christmas day and Easter.
In paragraph 50 of the Court’s reasons, Neville J stated:
“Dr S was not required for cross examination. Having regard to this fact, and given the very narrow range of issues to be determined, in general terms I have no issue with any of the comments or recommendations made by Dr S.”
In paragraph 58:
The court can and should, in my view, also infer that such indications confirm that there are no untoward matters as viewed by the children that would militate against the father having regular time with them. It is only really matters of logistics in relation to “time with”, such as “how much”, “frequency” and “when”.

Paragraph 63:
By way of summary and conclusion, in terms of the submissions, I should be taken generally to accept the submissions of counsel for the ICL…
Paragraph 68:
Finally, in relation to the remaining two issues of travel to (country omitted) and the girls’ time with the father, I accept the submissions by the ICL. I agree with the minute of orders provided by the ICL in the light of those submissions in relation to these matters. Orders in accordance with that Minute will be made.
The Court accepts the mother’s affidavit evidence and oral evidence to the effect that she opposed and did not facilitate the children spending time with the father during the periods 24 to 28 March 2016 and 16 June to 20 June 2016 because she was of the view, supported by her solicitor’s advices, that orders 15 and 16 of the Court’s orders of 25 June 2014 did not permit the father to take the children to Queensland which overlapped days when the children were due to be in her care pursuant to the Court’s orders of 25 June 2014. Again, the father’s proposed travel to Queensland with the children during his proposed periods in March and June 2016 would have overlapped time that the children were otherwise due to spend with the mother pursuant to the Court’s orders of 25 June 2014.
In these circumstances, without proceeding to express a view on the correct construction of orders 15 and 16, and assuming for the moment that the father’s contended construction of orders 15 and 16 is correct, the Court finds that the mother did not “intentionally” fail to comply with orders 15 and 16 (see s 70NAC(a)(i) of the Act), and the father’s pleaded contraventions in this context should be dismissed accordingly.
In the alternative, again in these circumstances, and assuming for the moment that the father’s contended construction of orders 15 and 16 is correct, if the Court is incorrect in relation to the above finding, then the Court would find that the mother had reasonable excuse for contravening orders 15 and 16 because, or substantially because, she did not, at the time of the contraventions, understand the obligations imposed by the orders on her, and the Court is satisfied that the mother ought to be excused in respect of the contravention.
The Court should state that it follows that if the mother’s contended construction of orders 15 and 16 is correct, then there has been no relevant contravention by her in this context.
The next pleaded alleged contraventions by the father relate to alleged breaches of order 26 of the Court’s orders of 25 June 2014 by the mother on 8 August 2015 and 7 September 2015, in that she was critical of the father whilst in conversation with the children.
The Court has considered the parties’ respective evidence in relation to these alleged contraventions of order 26, including their affidavit evidence, and the mother’s oral evidence.
In relation to the alleged contravention on 8 August 2015, the father confronted the mother in relation to what the children had allegedly told him (“Mummy said that you said mean things to her and that is why she had to leave you. Why did you say mean things?”) in a text message to the mother on 8 August 2015. The next day the mother responded by text messages to the father stating, inter alia, that, “I have not put you down or gone into detail about the nature of the relationship- I do not wish to damage her relationship with you”, and, “I have not spoken negatively about you.”
In relation to the alleged contravention on 7 September 2015, the father confronted the mother by text message in relation to what the children had allegedly told him on 7 or 8 September 15 (“You did say mean things to mummy, we asked mummy again and she said you were telling the truth and that you did say mean things to her.”). The father’s text message was strong in its language and quite accusatory of the mother, noting that the mother apparently did not respond to that text message. The text message of the father in this context stated:
The girls asked me why I said it wasn’t true that I said mean things to you because they asked you again and you said it was true and you said I wasn’t telling the truth. They also said that you told them that when they get older you will tell them the things I said. (Excellent way to let your negativity linger in their minds all throughout childhood). Why do you have to continue your attacks against me via the girls especially when you are hurting them so much. To what gain do you do these things, or is it purely to get to me the only way you can. The only thing you are doing is harming them. If you want to continue to rant about me then please, at least, use adults as your sounding board like you normally do.”
In the circumstances of the above accusatory text messages from the father to the mother, and noting the contents of the mother’s affidavit relating to how she found communicating with the father to be emotional draining and impacting upon her emotional well-being in having to communicate with him, the Court draws no adverse inference against the mother in failing to respond to this text message of the father.
In the mother’s affidavit she states, inter alia, that she has never attempted to damage the children’s relationship with the father; she has always tried to promote a positive image of the father to the children, and she has never spoken negatively about the father in their presence; and she has never said to the girls “Daddy said mean things to me and that is why I left.”
The mother’s oral evidence was generally supportive of her affidavit evidence.
The Court has considered the submissions of the father in relation to these two alleged contraventions. He submits, inter alia, that at no relevant time did the mother expressly deny that she had stated the words to the children that the children had apparently relayed to the father.
The Court does not accept these submissions. The Court accepts that the mother sought to deny the father’s accusations made to her on 8 August 2015, in the manner in which she did by her text messages, and, as discussed above, it was understandable as to why the mother did not respond to the father’s strong and accusatory text message of 8 September 2015.
In all the circumstances, accepting the mother’s affidavit and oral evidence, the Court is not satisfied that the father has proved (on the balance of probabilities) that these contraventions occurred.
Accordingly, the father’s contravention application will be dismissed, the Court not having found that the mother committed any of the alleged contraventions.
Variation of parenting orders
The Court, having determined to dismiss the father’s alleged contraventions, pursuant to s70NBA(1)(b)(i) of the Act, the Court may make an order varying orders 15, 16 and 17 of the Court’s orders of 25 June 2014.
Section 70NBA of the Act provides:
Variation of parenting order
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
(2) If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a) the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program;
(b) there was no post-separation parenting program that the person who contravened the primary order could attend;
(c) because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court's opinion, for the person to attend a post-separation parenting program, or a part of such a program;
(d) the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
In considering whether to make an order varying these orders, the Court must treat the children’s best interests as the paramount consideration: s60CA of the Act.
Further, in this context, the Court is required to consider the objects of part VII of the Act and the principles underlying it, as referred to in section 60B of the Act, and must consider the relevant matters set out in section 60CC of the Act in determining what is in the children’s best interests.
Pursuant to section 4(1) of the Act, a “primary order”, as referred to in section 70NBA(1) of the Act, means an order under this Act affecting children and includes such order as varied.
The Court refers to the mother’s affidavit and oral evidence, which it accepts. The mother’s affidavit evidence in particular indicates that the mother has found the parties’ disputation in relation to the proper construction of orders 15, 16 and 17, over a significant period of time and to date, has caused her adverse emotional reactions and which she is concerned may adversely impact upon her parenting ability. The mother states that by nature she tries to avoid conflict. The mother states in her affidavit filed April 3 March 2016, that over the past year, a major focus of the conflict between the parties has been in relation to orders 15 and 16 of the current orders. She states that over the previous 12 months she has felt the pressure from the father has been mounting.
The mother states that since the parenting orders were made, she has spent countless hours engaged in communication to-ing and fro-ing with the father. She states that she felt so worn down by the father’s relentless pressure over the extra time whereby he continually sought to add to the girls time with him that she eventually relented and gave into him by letting him “attach” an extra five days onto any day when he had the children, such as when he had the children for a single day (for example, his overnight time on Mondays). The mother states that she has done this notwithstanding that she still disagrees with the father’s interpretation of orders 15 and 16 and she has maintained that his interpretation is not in the spirit of the orders.
The mother states that the parties’ respective interpretations of the spend time orders made 25 June 2014 is very different, and has been the focus of a lot of conflict between them. She states this conflict has increased by the way the father used orders 15 and 16 to extend his recent Christmas holiday block period.
The mother asserts that the need for orders 15 and 16 no longer exists once the parties had moved to a position of each of them having half the holiday time with the children. The mother asserts that the father can accommodate a trip to Queensland during any of the block periods he has the children and without the need to reduce the children’s time with the mother.
The mother states in her affidavit that the parties remain in conflict over the spend time arrangements.
In relation to orders 15 and 16, the mother summarises her position by stating:
a)The contentious parts of orders 15 and 16 should have been only transitional arrangements and have ceased to apply once the parties’ time with the children had moved to alternate weekends and half of school holidays.
b)She believes that what the father is seeking to do is not fair and is not within the spirit of the orders.
c)She states that the additional block periods of up to 5 days should no longer apply now that the father has half of all school holidays as he has ample opportunity to schedule his trips to Queensland during his half of the school holiday time, and without taking such extra time coinciding with the children’s time with the mother.
d)She asks the Court to discharge orders 15 and 16.
In the mother’s affidavit, she describes how she has felt worn down by the communications with the father. She sets out in details of the communications with the father from February 2015 to December 2015. The mother refers to the fact that the parties participated in mediation with an accredited Family Dispute Resolution Practitioner in September 2015, in relation to trying to resolve the parties differences over the specific issue of the additional five day block periods which the father wished to take every three months (order 15), without success.
In relation to the father’s affidavit in which he alleges that the mother is also damaging his relationship with the children by, inter alia, manipulating the children’s attitudes to their holidays with the father, the Court notes the opposing evidence of the mother, which the Court accepts, that she has never attempted to damage the children’s relationship with the father, and has always tried to promote a positive image of the father to the children and has never spoken negatively about the children in their presence.
Without proceeding to express any concluded view as to the correct construction of orders 15 and 16, the Court accepts that the proper construction of orders 15 and 16 is arguably open to differing interpretations, and is arguably open to some doubt.
What is important for present purposes is that the parties respective and competing interpretations of orders 15 and 16 has resulted in prolonged conflict between them, which continues to date, and has caused the mother to experience adverse emotional reactions over a significant period of time and which she fears will impact upon her parenting capacity of the children if such disputation continues.
Accordingly, in the view of the Court, should orders 15 and 16 remain in existence as orders of the Court, the parties are likely to remain liable to conflict in relation to their respective interpretations of orders 15 and 16, carrying the significant risk that the mother will experience adverse emotional reactions which will potentially adversely affect her parenting capacity of the children. In these circumstances, there is a significant risk that the children’s meaningful relationship with the mother will be adversely affected.
Should the Court vary orders 15, 16 and 17 as set out immediately below, the Court is of the view that the children’s meaningful relationship with the father should not be adversely affected:
Order 15: commencing 15 December 2017, once in every 3 month period, the father is permitted to travel to Queensland with the children for a block period of up to 5 nights (subject to an extension of this 5 night block period during, and only to the extent of, the father’s permitted school holiday time with the children) upon the father giving at least 28 days’ notice of the date of travel to the mother.
Order 16: Any travel to Queensland authorised by order 15 above shall only occur:
(a)during any school holiday period that the father is entitled to spend with the children pursuant to order 8, or
(b)during the time that the father is entitled to spend with the children pursuant to order 7 g), with the father being permitted to extend such time in order 7 g) (so as to total 5 nights) until the commencement of school Thursday in the first week.
Order 17: For the purpose of orders 15 and 16, the father is to provide to the mother the address and contact details of any place where he and the children will be staying throughout the period of travel.
In this context, the Court notes that the present effect of the orders of 25 June 2014, apart from orders 15, 16 and 17, in relation to the children spending time with the father, includes the children spending time with the father for 4 nights each fortnight during school term times, half of each school holiday period, Christmas days with the father in even numbered years, Father’s Day, the father’s birthday, time with the children on their birthdays, and telephone or Skype communication each Thursday night (unless the mother is travelling with the children to (country omitted) during school holidays).
The above proposed variations to orders 15, 16, and 17, will result in the father, pursuant to those proposed varied orders, being permitted to spend additional time with the children during school term times (but only if he travels to Queensland with the children at these times), noting his Saturday time with the children, under order 7 g), cannot begin until 4pm on that Saturday by reason of his work commitments. Such additional time will enhance the children’s meaningful relationship with him.
The Court notes the father’s recent submission that any variation to orders 15-17 should permit him to spend, at his option, the additional time during school term times, either at his residence in Sydney or in Queensland. The Court is not satisfied that it will be in the best interests of the children to accede to such a varied order, noting that the existing order 15 sought to provide the father additional time with the children but only in the context of travel to Queensland, and not providing for such additional time being spent with the children at the father’s residence in Sydney when they would otherwise be at school.
The Court’s proposed variations to orders 15, 16, and 17, seek to prevent the father taking any Queensland travel with the children during any weekend time that the children are living with the mother under the existing orders, or during any holiday time that the children are spending time with the mother. Accordingly, such proposed variations should minimise if not remove the past conflict between the parties arising out of their differing interpretations of orders 15-17, and prevent the children’s meaningful relationship with the mother being adversely affected. Further, the proposed variations seek to minimise the children’s potential absences from school, which will be in their best interests.
It is clear that the children both enjoy meaningful relationships with each parent and would benefit from a continuance of those relationships.
The Court gives significant weight to this meaningful relationship primary consideration.
In relation to the need to protect primary consideration, as discussed previously in these reasons, the Court does not accept that the mother has sought to damage the children’s relationship with the father. The Court accepts the mother’s evidence that she has always tried to promote a positive image of the father to the children and has not spoken negatively about the father in their presence.
In this context, as to other relevant considerations under section 60CC of the Act, the Court states the following.
The children appear to continue to wish to spend regular time, including holiday time, with the father. The children are presently aged eight years, and six years, and the Court gives some weight to their views.
The parties would appear to continue to take the opportunities to participate in making decisions about major long-term issues in relation to the children, and to spend time with them, and to communicate with them.
The parties appear to have fulfilled their obligations to maintain the children.
Should the children travel to Queensland with the father in accordance with the court’s proposed variations to orders 15-17, the Court is of the view that there should be no adverse impact upon the children’s emotional well-being.
Both parents would appear to continue to have the capacity to provide for the needs of the children, including their emotional and intellectual needs.

The parties’ attitudes to the children and to their responsibilities of parenthood appear to have been appropriate.
It would be preferable to make orders varying orders 15, 16 and 17, as proposed above, as such orders would be least likely to lead to the institution of further proceedings in relation to the children, as opposed to the continuation of orders 15, 16 and 17 in their current form. The Court states this view, in light of the history of the parties’ disputation in relation to orders 15 and 16 and 17, including the current proceedings being dealt with by the Court.
Evaluating the above considerations under section 60CC of the Act, it will be in the best interests of the children to vary orders 15, 16 and 17, as proposed above, as follows:
Order 15: commencing 15 December 2017, once in every 3 month period, the father is permitted to travel to Queensland with the children for a block period of up to 5 nights (subject to an extension of this 5 night block period during, and only to the extent of, the father’s permitted school holiday time with the children) upon the father giving at least 28 days’ notice of the date of travel to the mother.
Order 16: Any travel to Queensland authorised by order 15 above shall only occur:
(a)during any school holiday period that the father is entitled to spend with the children pursuant to order 8, or
(b)during the time that the father is entitled to spend with the children pursuant to order 7 g), with the father being permitted to extend such time in order 7 g) (so as to total 5 nights) until the commencement of school Thursday in the first week.
(6)Order 17: For the purpose of orders 15 and 16, the father is to provide to the mother the address and contact details of any place where he and the children will be staying throughout the period of travel.

Mother’s application seeking an order that she have sole parental responsibility for the children

The father opposed the making of a sole parental responsibility order.
The orders of the Court of 25 June 2014 provided for the parties to have equal shared parental responsibility for the children after 18 months from the date of the orders to: during that first 18 months the mother was to have sole parental responsibility.
As to relevant legal principles relating to the decision in Rice and Asplund (1979) FLC 90-725, being a decision relevant to a party’s application to the Court seeking to re-litigate a past parenting order of the Court, the Court refers to the recent decision of the Full Court of the Family Court of Australia in O’Brien & O’Brien [2017] FamCAFC 219. At paragraphs 21-22, Ainslie-Wallace J stated:
“21. It is perhaps important to set out here the relevant principles which are conveniently set out by the Full Court in Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 (“Marsden”). In that case, after discussion of the earlier authorities and, in particular, adopting statements made by Warnick J in SPS and PLS [2008] FamCAFC 16; (2008) FLC 93-363 (“SPS”) the Full Court said:
48. In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49. However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
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.
(Footnote omitted)
22. His Honour’s expression of the “test” to be applied as set out in his reasons at [52] does not align with the Full Court authorities and restricts the nature and extent of the enquiry necessary to the determination. To merely look to whether there has been a “change in circumstance” or the coming to light of some previously undisclosed piece of information is not consistent with the principles as explained in Marsden. As was emphasised by both Warnick J in SPS and the Full Court in Marsden, the rule in Rice and Asplund is merely a manifestation of the best interests principle...”
Neville J’s judgment states, inter alia:
Paragraph 19: First, the parties gave their evidence as frankly as circumstances allowed. I do not accept the submission put many times to the Father that (a) his evidence showed that he was very difficult to deal with or (b) his invariable modus operandi was that during the relationship and perhaps since it was ‘his way or nothing else’. Difference, for example in parenting styles or even in daily living, is not of itself opposition or, worse, defiance or antagonism to the other parents. Difference is simply difference.
Paragraph 20: Secondly, I accept that, from the Mother’s perspective, during the relationship and perhaps to some degree since separation, she perceives and sometimes experiences the Father as difficult to deal with. At the same time, as noted by Counsel for the ICL, the Mother confirmed that with the use of SMS and email, she now has time to pause in her deliberations before responding to the Father in relation to any parenting matter; this assists her.
Paragraph 21: Thirdly, I also accept the submission from Counsel for the ICL that the reality is that for the next little while, absent any emergency, the major decisions regarding parenting matters have actually been agreed between the parties. Those decisions relate to the girls’ schooling and whether they should be immunised.
Paragraph 23: Fifthly, notwithstanding submissions to the contrary on behalf of the Mother regarding (a) the Father’s obstructionism, as well as (b) his control of finances and the like during the latter part of the relationship, such as the timing of his consent or agreement in providing the Mother with further funds to the tune of $60,000 only in more recent days (this was – I was assured by Counsel for the Mother – effectively a payment akin to a Strahan order), in my view, such matters were more finely balanced, or should be perceived or understood in a more nuanced way. Indeed, while I accept, as I have said, that the Mother’s perception of the Father’s behaviour was difficult or controlling in the latter part of the marriage, it was and remains in my view very much a matter of perception. Whatever the history, I have little doubt that in time and with further assistance the Mother’s independence and self-confidence will continue to return and ultimately flourish.
Paragraph 24: It is not uncommon that, in a relationship that once was one of mutual support and care, upon its breaking up – perhaps especially if the rupture is in fact, as it was here, a slow gradual corrosion of trust and cooperation – it will be perceived by one or both parties as antagonistic and controlling. Such was and is the case here.
Paragraph 34: Generally in relation to her current circumstances (broadly defined), Dr S noted (Report, par.42):
Mrs. Long acknowledged that it was quite difficult for her socially after the breakdown of the marriage, as she was not living in her home country and she moved away from the community in which she had lived with Mr. Long. However, Mrs. Long claimed to be living in a ‘really lovely environment’, within a strong faith community, where she has made friends and enjoys the support of others. Moreover, Mrs. Long believes that this has been good for her because she has had to do this independently, which has challenged her confidence, self-esteem and assertiveness skills.
Paragraph 36: Still in relation to her general effect now, par.50 of the Report records:
Mrs. Long suggested that since leaving her marriage, she has ‘gone from strength to strength’ and she is reportedly ‘much happier’, more self-confident and she feels like a stronger person without Mr. Long’s influence. Further to this, Mrs. Long commented that having some geographical distance from Mr. Long has also assisted her. She maintains communication via text message with Mr. Long in relation to the children but Mrs. Long noted that she finds face-to-face or phone conversations with her estranged husband ‘too intimidating’, albeit less so over time.
Paragraph 38: In relation to parenting and living situation generally, Dr S recorded (at pars.59-61)
59. Mrs. Long reported that she is happy for Mr. Long to have contact with the children, although she wants for him to be ‘consistent’ with the children and she does not want ‘any sudden transitions’ with respect to the visitation arrangements, so as to minimise any difficulties for the children. Mrs. Long added that she has resisted overnight contacts up until now due to the children’s ages but she acknowledged that overnight contact should occur at some point. Ideally, she claimed that she would like the children to remain in her residence and to have contact with their father on alternate weekends after Mr. Long's Church responsibilities have concluded, in addition to building up over time so that the girls spend half the school holidays with their father, as well as his birthday, special occasions and the like. Mrs. Long added that phone contact between Mr. Long and the girls is also important.
60. Mrs. Long stated that she wants sole parental responsibility for X and Y and she attributed this to concerns about Mr. Long’s inflexibility and resistance to negotiating with her. Mrs. Long added that she is opposed to a shared care arrangement because of Mr. Long’s history of limited involvement with the children and in domestic responsibilities. In addition, she believes that her relationship with Mr. Long is not amicable enough for the pair to be able to communicate effectively in relation to the children and Mrs. Long also expressed concern about Mr. Long’s lazy and isolated nature generally, which she believes will limit the activities that he engages in with the children. Further to this, Mrs. Long complained that Mr. Long has been inflexible with her since separating and he apparently refuses to negotiate around the children, which will make ongoing co-parenting very difficult.
61. Mrs. Long would like to stay in (omitted) and she claimed that both she and the girls are settled in their current residence. Mrs. Long’s employment is stable, the children reportedly enjoy their day care and Mrs. Long has a great deal of support from her local faith community, in which she is an active member.
Paragraph 49 of Neville J’s judgement refers to the recommendations of the family report writer, one such recommendation being that:
the responsibility for the day-to-day decisions about the children’s well-being be discharged by (the mother) but that responsibility for significant decisions, such as that pertaining to medical care and education, be shared between (the parties).
The Court refers to paragraph 66 of Neville J’s judgment which states:
66. On the court’s view of the evidence, there should be an order for sole parental responsibility in the mother’s favour, but for a short period of time and with very clear additional orders for consultation with the father at all times. The period for such orders, before it reverts to equal shared responsibility, shall be 18 months. In my view, this will be more than sufficient time for the mother to undertake any further remedial course, counselling, or other assistance that she feels is required to help her recover from the failed marriage.”
There is no evidence in the mother’s affidavit that she undertook such remedial course, counselling or other assistance, as anticipated by Neville J.
The mother’s affidavit states that, following the orders of the Court of 25 June 2014, to her disappointment, she has found that the father has returned to his previous behaviour of relentlessly pressuring her which had, prior to the parties separation in 2012, contributed to her suffering a physical and emotional breakdown which required her hospitalisation and several months recuperation with her family in (country omitted).
The mother states that the father will invariably turn negotiations into a long and tiresome process, with the father’s approach to negotiation being never to take a backward step. Consequently, the mother asserts that she ends up feeling emotionally drained and exhausted whenever she deals with the father.
In the mother’s affidavit, she refers in detail to the difficulties that she has experienced with the father in relation to resolving their different interpretations of orders 15 and 16 of the Court orders of 25 June 2014. The mother states that over the past year, a major focus of the conflict between the parties has been in relation to orders 15 and 16 of the current orders.
The mother states that the father does not respect her viewpoint and with the father it is always his way or the highway. The mother states that she dreads what lies in store for her now that the father and herself have to share the parenting responsibility in decision-making. The mother states that based on past and recent experiences, she suddenly cannot work with the father and she fears that she will be unable to cope with the pressure that the father will bring to bear on her. The mother asserts that now that the parties have equal shared parental responsibility, the father does not listen to her views and simply does what he wants; in this context, she gives an example of a dispute that the parties had in relation to orders 15 and 16.
The mother gives an example of her request to travel overseas with the children and the father’s response; ultimately the father sent a text messages to the mother stating, inter alia, “Safe country, safe location, signature if Hague Convention and not overlapping my time or contested times.”
The mother states that she finds that when she communicates with the father, the communication turns into a negotiation. She finds this emotionally draining and impacts upon her emotional well-being as she gets worn down by the emotional energy invested in virtually every dealing she has with the father. She is concerned that this may ultimately affect her ability to parent the children. She does not want to be worn down to the point of falling ill like she was in 2012 leading up to the separation.
The mother refers to communicating with the father and going round and round in circles and getting nowhere, which she finds extremely emotionally draining.
The court refers to the mother’s affidavit under the heading “Parental responsibility”. The mother states that shared parental responsibility will be unworkable. She states that after the orders of 25 June 2014 when the mother had sole parental responsibility, initially there was considerably less conflict between the parties. The mother states her belief that the parties cannot co-parent effectively and in the best interests of the children.
The mother gives some examples, apart from the parties’ conflicts relating to orders 15 and 16, of the parties alleged inability to co-parent the children. For example, a school excursion to a farm with the child’s kindergarten class; a disagreement regarding a recent decision in respect to the youngest child’s school – the mother asserts that the entire text message dialogue with the father concerning when the youngest child should start school seemed to go round and round in circles, after the father had delayed for some months responding to her initial text message. It was very draining for the mother to deal with. The Court interpolates here that this decision ultimately rested with the mother as she still had sole parental responsibility, but that the mother had thought it appropriate to include the father in the decision.
The mother gave oral evidence and was cross examined by the father on this issue of sole parental responsibility.
The mother confirmed that verbal communication between the parties is very minimal and communication usually occurs through text messages.
The mother asserted the father was unwilling to work towards a solution when communications occurred between them. She asserted that the father sets up a brick wall. She gave an example of a disagreement between the parties relating to the mother travelling with the children to (country omitted) at a time when the maternal grandfather was very unwell. The mother referred to the father refusing all her options in relation to the proposed trip to (country omitted). One aspect of the parties’ disagreement at this time was the father’s belief that it was not in the children’s best interests to spend time near grieving relatives following the paternal grandfather possibly passing away.
In relation to the mother’s decision to keep the youngest child in preschool and send her to kindergarten in 2017, the mother acknowledged that the father made no further representation to her after a written report was received from the child’s preschool.
The mother stated that the father at one point would not agree to enrolling the eldest child at a particular school. She ultimately agreed that financial issues were at the heart of that dispute between the parties.
The mother, the Court notes, before giving her oral evidence, submitted to the Court, after the Court had enquired of the mother what potential major decisions for the children were looming, that she was particularly concerned that if her financial circumstances took a turn for the worse, then she may not be able to continue to pay the children’s private school fees resulting in her having to reach agreement with the father in relation to another school for the children. In this context, the mother stated that she worked as a (occupation omitted) in (omitted) in a (employer omitted) and she worked three days per week as a permanent part-time employee.
The father cross-examined the mother in relation to aspects of her financial circumstances. The mother confirmed that the father paid child support for the children through the Child Support Agency in the sum of about $130 per month. She confirmed that she was presently able to pay the children school fees, and that the father’s employer paid 30% of those fees.

Discussion

The mother, in the view of the Court, has discharged the onus upon her of establishing a relevant change in circumstances following the making of the orders of 25 June 2014; the parties have been involved in significant disputation regarding orders 15 and 16, in particular, which has led to adverse emotional change in the mother, as previously discussed, with arguable consequential affect upon her ability to exercise equal shared parental responsibility with the father. Such disputation regarding orders 15 and 16 has contributed to the filing of the father’s contravention application.

The Court should now consider whether there is a likelihood of the past order for equal shared parental responsibility being varied in a significant way.
It is reasonably clear that the overwhelming dispute that has dogged the parties since the Court’s orders of 25 June 2014 has been their differing interpretations of orders 15 and 16. Although there appear to have been other disputes, those other disputes have not been nearly as significant, at least in terms of prolonged disputation, compared to the parties’ very significant disputation regarding orders 15 and 16.
Again, the Court notes that the mother, when asked by the Court what major decisions for the children were potentially looming, in the context of equal shared parental responsibility, her main concern was that if her financial circumstances took a turn for the worse (of which there was no significant evidence that they would), and the children could no longer attend a private school, she would need to seek agreement with the father in relation to the children’s schooling. In this context, the Court has not overlooked the mother’s affidavit in which she refers to the potential need to seek the father’s agreement to travel overseas with the children, but nevertheless, there does not appear to be major decisions likely to have to be agreed upon between the parties in relation to the children in the foreseeable future, whilst the Court recognises that life is unpredictable.
In submissions, the mother referred to finding conflict stressful, and expressed a lack of confidence prospectively of the parties reaching agreement on major decisions for the children. The Court notes that there is no evidence that the mother has undertaken the further remedial course, counselling, or other assistance “that she feels is required to help her recover from the failed marriage”, and which is referred to in paragraph 66 of Neville J’s judgment.
The Court would anticipate that following variation of orders 15, 16 and 17, as discussed previously, it is likely that a very major source of past disputation between the parties will be put to rest. Thereafter, the Court is optimistic that it is likely that the parties will be able to reach agreement on major decisions affecting the children. Accordingly, as a result of the Court’s proposed variation to orders 15-17, the Court is of the view that there is not a likelihood of the existing order for equal shared parental responsibility being varied in a significant way.
As to the mother’s application to discharge order 21, in view of the Court’s determination to make orders varying orders 15-17, it does not deem it necessary, acting in the best interests of the children, to discharge order 21.
At the hearing, the Court notes the father was content that the mother be permitted to authorise the children to receive the usual immunisations, and a notation will be made to this effect.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 14 December 2017

[2017] FCCA 3118

14 December 2017

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Family Law

Civil Procedure

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Appeal

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Procedural Fairness