Lowe and Short

[2009] FamCA 314

FAMILY COURT OF AUSTRALIA

LOWE & SHORT [2009] FamCA 314

FAMILY LAW – CHILDREN – slip rule amendment –  application to vary consent orders

APPLICANT: Mr Lowe

RESPONDENT: Ms Short

INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

FILE NUMBER: SYC 4151 of 2007

DATE DELIVERED: 9 April 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 9 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms King

SOLICITOR FOR THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

Orders

1. Pursuant to the slip rule, the orders made on 19  February 2009 which were consent orders are varied by:

   1.1.In order 7 where the words “orders 4 and 5” appear changing those words to “orders 5 and 6”.

   1.2.In order 9 where the words “order 5” appears changing those words to “orders 6(a) and (c)”. 

2. By consent, order 6(a) be varied so that the words “from 5pm Friday” be changed to read “from 6pm Friday”. 

3. Neither parent shall denigrate the other in the presence of or within the hearing of the child or permit any other person to do so.

4. Neither parent shall discuss the proceedings in the presence of or within the hearing of the child or permit any other person to do so.

NOTATION:

1. The father by way of an application in a case filed on 16 March 2009 seeks that order 9 of the orders made by consent on 19 February 2009 be amended so that the words “order 6(a) and (c)” read “6(c)”.

2. The father makes an oral application for a final order that order 9 of the current orders be changed to remove 6(a) from that order and that a further order be made that for the purposes of 6(a), changeover of the mother’s time with the child shall occur at the home of the father’s parents at W. 

IT IS FURTHER ORDERED THAT:

1. The father’s oral application referred to in Notation 6 and the application in the case referred to in Notation 5 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4151 of 2007

MR LOWE

Applicant

And

MS SHORT

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter on 16, 17 and 18 February 2009 I heard evidence in contested proceedings relating to the parties’ child born in May 2004.  At that time the child was living with his mother and seeing his father on a supervised basis on various weekends in Canberra.  The mother was represented by Ms Messner.  The father was represented by Mrs Black.  The Independent Children's Lawyer’s counsel was Ms Druitt.

2. It is fair to say that prior to the time consent orders were made, the hearing was not going all that well for the mother.  The evidence, however, had not completed.  I had not heard submissions on the evidence.  I had not made any findings in relation to the issues that were outstanding between the parties.

3. The result of the consent orders was a major change in that the child went from primarily being in the care of his mother to primarily being in the care of his father.  Part of the new arrangements set out the time that the child was to spend with his mother.  Those times were limited and were predicated on two alternate scenarios;

   3.1.The mother remained at Y, in the Snowy Mountain region, and

   3.2.The mother moved to the Central Coast.

4. If the mother was to remain in Y, order 6 clearly sets out that she was only to see the child the first weekend of every month during school term.  Order 6(b) said that should she be prepared to travel to the Central Coast to spend time with the child on the Central Coast, she could spend additional time with the child during school terms.

5. Order 9 on its face seemed to require changeover in the event that the mother was living at Y at a Restaurant on the Canberra side of Goulburn.  So an ordinary reading of order 6(a) and (b) would mean that if the mother travelled to the Central Coast she could see the child the first weekend of every month on the Central Coast.  But implicitly if she did not, then the first weekend of every month would be a situation where she would not be seeing him on the Central Coast; she would collect him from somewhere else and that somewhere else was at a changeover at a Restaurant on the Canberra side of Goulburn.

6. It is difficult to see how orders 6(a) and 6(b) and 9 can be read together to produce a result whereby the father thought that all first weekends of every month would be weekends that would be spent on the Central Coast.  The father says that he signed the orders after his barrister read them to him, but he goes on to say when he was given the orders to sign he had a different understanding of what was in them.

7. It is hard to accept that he had a different understanding in circumstances where orders 6(a), 6(b) and 9 say what they say and his evidence is he read them.  These orders were made with the consent of everybody on 19 February 2009.  My recollection and note is that they were made at 12.15 pm on the fourth day.  There was no indication at that time that anybody had been rushed or that as the father says in his evidence the Court was waiting for us to sign the orders “so I did without checking them”.

8. The father has to establish under the test in Rice v Asplund that there has been a substantial and significant change since the orders were made.  His lawyer today says, "Well, the change is he did not understand the orders that were made in the first place."  The father got a substantial advantage from these orders.  There was a significant change in the arrangements in relation to the child; a change which the father desired and the mother initially resisted.

9. The mother and the Independent Children's Lawyer knew what the orders said.  Any mistake on behalf of the father is a unilateral mistake.  In my view in the circumstances of this case it is not an error that if I accept that it was made which I have some grave doubts about; if I accept the error was made it is not a mistake that in my view is able to vitiate the orders that were made nor to create a circumstance upon which the father could rely to vary the orders.

10. If I am wrong about that, I then in any event have to turn to consider what is in the child’s best interests.  The father's case is that I should vary the orders in the child’s best interests because it is in his best interests to minimise travel time for him.  That is a blanket assertion the father is making.

11. I have heard evidence however that the mother finds it difficult to travel as a result of her previous injuries.  Her evidence before me today is that if she is required to travel to the Central Coast on a monthly basis during school term she would probably have to take an extra day to get there so that she would be in a fit condition to spend time with the child on those monthly weekends.

12. The evidence is she has limited finances and that there would be considerable additional costs in the context of her limited finances in travel by way of petrol and in accommodation expenses once she got to the Central Coast.  She has given evidence that her plan under the existing orders is that 50 per cent or more of the weekends she will not actually be travelling back to her home but rather spending time with the child in the Goulburn or Canberra areas.

13. I am not convinced on the evidence that she has available suitable accommodation at her brother's house on the Central Coast.  She actually has not seen him for quite a while and although I have got no doubt that some temporary accommodation might be able to be arranged it is not in any way clear that that accommodation would be reasonably sustainable as a regular arrangement. 

14. The child has shown some ability to travel.  He has been travelling regularly for two and a bit hours from Y to Canberra to spend time with his father up until the date of the trial.  He sleeps well in the car.  In terms of the father travelling down in order to get to Goulburn at 6 pm; he might have to take the child out of school a little earlier than 2.30 pm.  The child is due to start school next year.  That is not a big deal.

15. The actual bottleneck is said to be between the end of the F3 and the beginning of the M2.  On a Friday evening that is travelling against the traffic that is heading north out of Sydney and I accept that that travel time will normally be around about the three hours.

16. In all the circumstances I do not think that the father has established that it is in the child’s best interests to vary what at least the mother and the Independent Children's Lawyer thought he had agreed to at the end of the four day hearing in circumstances where the mother had made the major concession of agreeing to a change of residence for the child.

I certify that the preceding sixteen (16) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts.

Associate: 

Date:  29.4.09