Meadows and Meadows (No 4)

[2019] FamCA 745

FAMILY COURT OF AUSTRALIA

MEADOWS & MEADOWS (NO. 4) [2019] FamCA 745

FAMILY LAW – CHILDREN – mother invokes liberty to apply provision in final parenting orders – limited capacity to amend – variations to orders made.

Family Law Act 1975 (Cth)

APPLICANT: Ms Meadows

RESPONDENT: Mr Meadows

FILE NUMBER: PAC 3509 of 2013

DATE DELIVERED: 19 September 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 19 September 2019

REPRESENTATION

THE APPLICANT APPEARED IN PERSON

THE RESPONDENT APPEARED IN PERSON

INDEPENDENT CHILDREN’S LAWYER: Mr P Wilkins
Phillip A Wilkins & Associates

Orders

1. That Order 4 of the Orders made 30 July 2019 be varied as follows:

   (a)Order 4(a) - no change;

   (b)Order 4(b) - no change to the location for changeover but to accommodate the operating hours of the Suburb MM Contact Centre the time shall commence at 9.30am and conclude at 3.30pm; and

   (c)Orders 4(c) and 4(d) – changeovers shall occur at the service station at Town UU.

2. That all other pending applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meadows & Meadows has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: PAC 3509 of 2013

Ms Meadows

Applicant

And

Mr Meadows

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. On 30 July 2019, for reasons published at that time, final parenting orders in relation to a child B, who will be eight years of age in November, and who had been the subject of contested parenting disputes for some years between the Applicant mother, Ms Meadows, and the Respondent father, Mr  Meadows, were made.

2. The Orders made on that day also included orders in relation to property proceedings between the parties.  To the extent that there is an obligation on the husband to pay to the mother a sum of $200,000 within 60 days of the date of the Order, the time for payment has not actually arisen.  In an Affidavit recently filed by the husband, he asserts that he is in the position to make the payment, but that the wife maintains a caveat over the title lodged in 2018, and the continuation of that caveat over the title prevents him completing refinancing and paying the funds to the wife.

3. In anticipation of not being in a position to make the payment to the wife as the Orders require, he sought in a sense by his Affidavit, an order for the removal of the caveat.  The mother says no formal application has been filed seeking such a machinery order or an order by way of enforcement, and that until that is done, it is premature for the Court to deal with the application.  She also says that she has sought to appeal, by a Notice of Appeal lodged on 27 August 2019, the property Orders.  She concedes that she has made no application to stay the Orders as at this time, but intends to do so.

4. I have indicated to the parties today that if the father, in anticipation of the requirement to settle within 60 days, believes he can only do so when the mother either releases or the caveat is otherwise released, if he needs an order to that effect, he will need to bring an application to do so.  Accordingly, I do not propose to deal with the property aspects of the matter today.

5. Both parties are unrepresented and they have a different understanding of the rules of Court.  The mother is very attuned to the rules of Court, as is apparent from her past conduct and the application she brings.  It is in respect of that application by the mother that I am asked now to consider an amendment to orders 4, 5 and 6 of the parenting Orders for B.

6. The full Reasons for Judgment set out the very difficult history for B.  Without saying much more, noting the mother has a pending appeal, sadly, B has not been spending time with the mother for some time, and part of that reason was the location of supervised time.  The mother said it was difficult to achieve for her, but more importantly, that she did not feel it was appropriate that she see her child in a supervised environment.

7. For the reasons set out in my Judgment, the Court took the view in the final analysis that the child should begin having unsupervised time with the mother.  This was contrary to the positions adopted at the trial to some degree by the Independent Children’s Lawyer and also the father.

8. Order 4 provided that the child spend time with the mother as may be agreed in writing between the parents, but at least as follows:

   “a.      Commencing from the date of these Orders, for a period of three (3) calendar months, each second Saturday from 10.00am until 2.00pm;

   b.        For a period of three (3) calendar months thereafter, each second Saturday from 10.00am until 4.00pm;

   c.        Thereafter, each second Saturday from 10.00am until 6.00pm; and

   d.        On Mother’s Day from 10.00am until 6.00pm.”

9. Order 5 provided:

   “That to facilitate the time in Order 4 above, changeover shall occur at Suburb MM Contact Centre (“the Centre”) and the Centre’s costs shall be shared equally by the parents and paid on demand by the Centre.”

10. Order 6 provided:

    “That within seven (7) days of the date of these Orders, the parents are to make contact with the Centre and make arrangements with the Centre personnel to undertake all the Centre’s requirements to become eligible to be able to use the Centre.”

11. When the current Application in a Case before the Court was first lodged, there was an involvement by a Registrar that caused Loughnan J to deal with the matter on 21 August 2019.  His Reasons for that day are before me.  He dismissed a number of Applications.  However, his Honour indicated that there was an issue in relation to the practical effect of the operation of the Orders, and that it should be returned to me as the trial Judge to deal with.  I have no difficulties, of course, with the Order made by his Honour, and I identified, as the transcript will reflect, the issue which I am required to decide today.

12. The position of the parties, I summarise as follows:

    a)The mother:  whilst the mother raises a number of other issues in her material about the inappropriateness, in effect, of the Orders I have made; the continuing distress to the child of not seeing her mother evinced from telephone calls, which still appear to be occurring; and from a general unhappiness with either the Orders or the Reasons, they are matters essentially which are properly to be ventilated before the Appeal Court as a result of the mother’s appeal.  It is not appropriate in this circumstance for me to revisit published Reasons when new evidence has allegedly been available now.  There is an opportunity for the Appeal Court in appropriate cases to accept further evidence at the appeal stage;

    b)In short, however, the mother’s complaint is that the Suburb MM location (be it a supervised centre or not) is geographically inappropriate because:

    i)her financial circumstances since the trial and/or the judgment have changed in that she has lost her job and she does not have the funds available to navigate the distance from her home at E Town to Suburb MM; and

    ii)the time provided for in the Orders, even if she were able to do so, would be insufficient for her to be able to take the child from Suburb MM to her home and return so that the child can enjoy the environment in which the mother lives.

    c)She offers as an alternative for changeovers to police stations:  one at SS Town, which is said to be approximately one hour from the mother’s home, and two hours 22 minutes from the father’s home, which is where the child lives under my Orders, or J Town Police Station, which she says would be about one hour and 15 minutes from the mother’s home and one hour and about 55 minutes from the father’s home.  The import of the mother’s proposals are that the location ought not be Suburb MM; the changeover location should be a police station; and the location should be effectively significantly closer to the mother’s home than the father’s home.

    d)The father is not supportive of the variations and says that, firstly, the Suburb MM Contact Centre as a location is still able to be available within the terms of the Order because their opening hours are 9.00am until 4.00pm, such that the time under order 4(a) could be achieved (10.00am to 2.00pm) and with some slight adjustment, the time under 4(b) (10.00am to 4.00pm) could be achieved by having a commencement time of 9.30am and a conclusion time of 3.30pm.  This would not reduce the amount of time that the child has been ordered to spend with the mother.

    e)The father says, of course, that the changeover at Suburb MM would be inappropriate because of unavailability under order 4(c) and 4(d) as the centre closes at 4.00pm.  The father strongly opposes a changeover at SS Town and J Town because of the travel time the child will need to spend.  Whilst he also raises the concern that alternate Saturdays will have an effect upon the child’s activities in the location in which she lives, which is likely to be the case, that was a matter which the Court took into account and was aware of when it ordered the regime of time that it did.

13. It is a balancing between the need for the child to continue to deal with the things she normally does in the area in which she lives, that is, in the area near E Town where she lives with the father, and the need, as I have found it to be, for the child to spend time with the mother.

14. The Independent Children’s Lawyer, represented today by Ms Wilkins, does not support a changeover to SS Town or J Town because of travel distances.  She says that the Suburb MM location is appropriate for at least order 4(a) and (b) (with a slight change of hours) and that, by inference, 4(c) could be moved on conclusion to a location in or around the Suburb MM area if the Suburb MM Contact Centre is not available.

15. Taking on board some of the submissions the Court heard today, the Court raised as a proposition for submission whether when the time the child spends with the mother under 4(c) and (d) takes effect, noting that time for day from 10.00am to 6.00pm under 4(c) will not take effect until six months from the date of the Orders (which means effectively the beginning of the next school year in or about January/February 2020) whether it would be in the best interests of the child for there to be a more centrally located changeover location.  In that regard, the mother points to historical use of a service station at UU Town, which is about midway between Suburb P and E Town.

16. I put to each of the parties their position in respect of that.  The mother, although preferring her proposal for SS Town and J Town Police Stations, would, I think, from what I gather, be less opposed to a changeover at UU Town, although likely still causing her some difficulties financially.  The father does not agree with UU Town because of the travel distance and interruption to the child’s normal routine.  Ms Wilkins on behalf of the Independent Children’s Lawyer does not agree with UU Town.

Discussion

1. There is a limited opportunity for the Court to vary the Orders pronounced on 30 July 2019.  Order 29 was identified by Loughnan J as effectively a liberty to apply for any orders to enforce the provisions of the Order but I think sensibly to consider any machinery variations to give effect to the Order.  The Reasons, in my view, make clear, but, in any event, I make it clear now that the intention of order 4 was to set up a regime that hopefully permitted the child B to begin spending time with the mother unsupervised.

2. For the reasons which I gave, that seemed to me to be a significantly important issue where there had been no time between B and the mother for some time because, for the reasons, again, referred to in my Reasons for Judgment, the mother refused to facilitate a supervised environment to spend time with B.  When the Order made to commence unsupervised time of four hours was made, it was well within the understanding of the Court that that length of time would not be sufficient to allow the mother to return to her home and back because of the distance the parties live apart.

3. I was anxious to provide an opportunity and hopefully an incentive to the mother to exercise unsupervised time with the child when she had refused to exercise, for the reasons that she articulated, supervised time.  It was always anticipated by the Court that if the time was to occur between 10.00am to 2.00pm, then it would be, in my view, necessary for that time to occur in and around the Suburb MM area.  Because the Suburb MM Children’s Contact Centre is available for those hours, I see no basis to amend paragraph 4(a) and I do not do so.

4. The same reason applies to order 4(b) and I do propose to change it to 9.30am to 3.30pm.

5. In respect of order 4(c) and (d), I propose to amend the orders to provide that when paragraph 4(c) operates, of course, 4(d) will first operate in May 2020.  Changeovers take place at the service centre at UU Town.

6. To the extent that the mother continues, even as I deliver these Reasons for Judgment, to seek to interrupt the flow of the Judgment, I choose not to adopt the practice in this case that was referred to by Loughnan J in his Reasons at paragraph 15 by terminating the call with her.  I hear her say she cannot afford to do what the orders require of her.

7. But it is, in my view, a matter for her to take every reasonable step by either moving closer or to use funds that she may have access to from the property settlement to exercise the time for unsupervised time.

8. Now, I do not expect that the mother has heard anything I have said because she has, whilst delivering these Reasons, continued to talk over me.  I do not engage further with her on that point.  I have delivered the Reasons.  That will be the order of the Court.  The Court now is closed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 19 September 2019.

Associate: 

Date:  21 October 2019