MERRELL & MERRELL (No.2)
[2019] FCCA 1846
•3 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MERRELL & MERRELL (No.2) | [2019] FCCA 1846 |
| Catchwords: JUDGMENT AND ORDERS – Parties agreed in final parenting orders – now contend the orders are unworkable – respondent unilaterally relocates with children across Melbourne – sufficiently significant change in circumstances – necessity for greater precision in orders than was provided by parties’ consent minute – orders discharged and further orders made. TRAVEL ORDERS – Respondent seeks to travel to Country A – respondent alters existing proposal so as to travel at a later time – absence of precision in scope of travel or security – Application refused. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 68P |
| Cases cited: Rice & Asplund (1979) FLC 90-725 |
| Applicant: | MR MERRELL |
| Respondent: | MS MERRELL |
| File Number: | MLC 4595 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 1 July 2019 |
| Date of Last Submission: | 1 July 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 3 July 2019 |
REPRESENTATION
| The Applicant: | In Person |
| The Respondent: | In Person |
ORDERS
Parenting
All previous parenting orders in relation to the children [X] born … 2012 and [Y] born … 2009 (Children) be discharged.
Pursuant to s.11F of the Family Law Act 1975 (Cth) (Act), the parties and the children attend upon a Family Consultant of the Federal Circuit Court of Australia at Melbourne (Family Consultant) for the purposes of a Child Inclusive Conference on 24 September 2019 and:
(a)the party with the care of the children and the children to attend at 9.00am; and
(b)the other party to attend at 10.00am,
at Level 5, Commonwealth Law Courts, 305 William Street, Melbourne.
Pursuant to paragraph (2) of this Order, the Family Consultant shall provide a written report to the court and to the parties with such written memorandum to be released no later than 10 November 2019.
Direct that a copy of these reasons for judgment be provided to the family consultant for the purposes of the s 11F report.
The applicant father and respondent mother shall have equal shared parental responsibility for the children.
The children live with the respondent.
The children spend time and communicate with the applicant as follows:
(a)subject to paragraph (b) of this Order, each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday (and to the commencement of school on Tuesday if Monday is a non-school day);
(b)in each School Term, the children’s spend time with the applicant shall commence on the first Friday after school resumes;
(c)in Term 1 and 3, for the whole of all the Victorian Government gazetted school holiday periods;
(d)in Term 2, for half of the Victorian Government gazetted school holiday period commencing from the conclusion of the last school day of Term 2;
(e)for twenty-four days of the Victorian Government gazetted Christmas school holiday period commencing at 1:00pm on Christmas Day;
(f)on Good Friday in each alternate year, commencing with the children to spend Good Friday with their father in 2020;
(g)on the applicant’s birthday and on Father’s Day, unless the children are otherwise in his care, from the conclusion of school at 3:15pm until 7:30pm if it is a school day or from 1.00pm until 6:30pm on a non-school day;
(h)on the children’s birthday, unless the children are otherwise in his care, from the conclusion of school at 3:15pm until 7:30pm if it is a school day or from 1.00pm until 6:30pm on a non-school day;
(i)in each alternate week, commencing from the second week in each School Term, by telephone on Tuesday and Thursday of that week from 6.00pm to 6.30pm or as reasonably requested by the children and for that purpose:
(i)the applicant is permitted to send a text message to the respondent to remind her of the appointed telephone call and the respondent is required to acknowledge receipt of that text message;
(ii)the applicant is permitted to provide the children a mobile phone;
(iii)the respondent is further directed to make her mobile phone available to the children should they require it; and
(j)at other times as is agreed in writing between the parties.
The children’s time with the applicant pursuant to paragraph (7) of this Order is:
(a)conditional upon the provision of a separate bedroom and a bathroom equipped with a door and covered shower facilities for the children and the children not sleeping in the applicant’s bedroom;
(b)suspended on the mother’s birthday and on Mother’s Day, unless the children are otherwise in her care, from the conclusion of school at 3:15pm until 7:30pm if it is a school day or from 1.00pm until 6:30pm on a non-school day.
For the purposes of paragraph (7) of this Order:
(a)during school term, the applicant shall collect the children at the conclusion of school on Fridays and return them to school on Monday morning (or on Tuesday where Monday is a non-school day) save that the children may remain in his care if they are unwell on that day but must be returned to the respondent by 6.00pm on a Monday where there were unable to attend school;
(b)at the end of school term, the applicant shall collect the children at the conclusion of school and the respondent shall thereafter collect the children in accordance with paragraph (9)(c) of this Order;
(c)where change over does not occur at school:
(i)the applicant shall collect the children at the School J Police Station; and
(ii)the respondent shall collect the children at the Suburb K Police Station.
The applicant without admitting the necessity for same, be restrained from:
(a)exposing the children to any adult rated images or content and/or viewing such content in the presence of the children or either of them;
(b)using any concealed filming devices whilst the children are in his care and/or installing any filming devices in the bedrooms, bathroom and living areas of his accommodation;
(c)permitting the children or either of them to come into contact with heavy machinery including forklifts whilst they are being operated at the father’s workplace.
The respondent be restrained whether by herself, her servants, agents, or howsoever otherwise from exposing the children to any adult rated images or content and/or viewing such content while they are in her care.
The applicant attend upon Dr C or such other psychiatrist as recommended by Dr F for the purposes of addressing his paraphilia diagnosis as directed by those professionals.
The respondent authorise any school which the children attend from time to time to forward all school reports, school photographs and school notices to the Father at his expense.
The applicant and respondent are permitted to attend school functions that parents normally attend.
Direct that a copy of this order be provided to the children’s school.
The parties each:
(a)authorise each of the children’s treating medical professionals to provide the other party with copies of any medical reports or assessments made with respect to the children, particularly in relation to the child [X]’s assessment for Autism Spectrum Disorder;
(b)file and serve an affidavit by 4pm on Wednesday 31 July 2019 to which they will exhibit all communications which they have sent to or received from any such medical professional to date.
Each party immediately inform the other party of any serious illness, injury or accident suffered by the children whilst in their care.
Each party keep the other informed at all times as to their current residential address and mobile telephone contact numbers.
Should either party wish to travel overseas with the children, the travelling parent shall provide the non-travelling parent with at least 60 days written notice of their intention to travel with the children and provide the other party with copies of all return flight tickets, a travel itinerary, contact details of where the children can be contacted during the travel period and a proposal for security for the return of the children, for the children’s contact time with their non-travelling parent and for the make-up time that they should have either before or following the period of proposed travel.
All extant parenting applications be dismissed.
The matter be adjourned for Mention at 10.00am on 24 February 2020 in the Federal Circuit Court of Australia at Melbourne.
Contravention
The respondent’s contravention application filed 6 March 2019 be dismissed.
Travel orders
The respondent’s application in a case filed 6 March 2019 be dismissed.
The respondent forthwith deliver the children’s passports into the custody of the Registrar of the Federal Circuit Court of Australia at Melbourne and the Registrar is directed to retain those passports until further order.
Other parenting matters
This Order is to operate pursuant to s 68P of the Act notwithstanding the provisions of any intervention order that has been made by a Magistrates’ Court.
Pursuant to s 68P(3) of the Act, a copy of this Order be served on the Police Commissioner of Victoria and the Department of Health and Human Services.
Direct that the parties, the Police Commissioner of Victoria and the Department of Health and Human Services may produce these orders and reasons for judgment to a state court.
Pursuant to ss.65DA(2) and 62B of the Act, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes any one of these orders are set out in Annexure A and these particulars are included in these orders.
Property
Subject to paragraph (30) of this Order, the proceeding is set down for final hearing at 10.00am on 7 September 2020.
Order and direct that:
(a)by 4.00pm on Tuesday, 1 October 2019, the respondent file and serve a Further Amended Response to the Amended Initiating Application stating the precise relief that is sought by her by way of any adjustment of property interests; and
(b)in default of compliance with paragraph 30(a) of this Order, the hearing set down for 7 September 2020 is vacated.
Direct that each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief) and further:
(a)the applicant electronically file and serve any affidavits to be relied upon at the final hearing not later than 28 days prior to the hearing;
(b)the respondent electronically file and serve any affidavits to be relied upon at the final hearing not later than 21 days prior to the hearing.
Other than as provided by this Order, no party may file or rely upon any further evidence without leave of the court.
The evidence in chief of each party and any witness be by way of affidavit as provided by paragraphs 31 to 32 of this Order.
Not later than two months prior to the final hearing the parties do electronically file and serve an Outline of Case Document (not exceeding 12 pages) including the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of the significant factual issues requiring determination;
(d)a list of contentions with respect to each of the considerations relevant to determining the issues in the proceeding;
(e)the actual orders sought.
In default of compliance with the obligations in any paragraph of this Order, either party may apply to the Chambers of Judge A Kelly for the matter to be listed for mention.
IT IS NOTED that publication of this judgment under the pseudonym Merrell & Merrell (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4595 of 2017
| MR MERRELL |
Applicant
And
| MS MERRELL |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment address a number of applications in relation to which, regrettably, further orders are required.
At this hearing, the parties were self-represented. However, I note that the court had previously suggested that the respondent should seek legal assistance. On 30 April 2019, the respondent was represented by counsel. She appeared without assistance on this occasion. It is not, at this stage, clear whether legal assistance has been withdrawn from the respondent by reason that the issues now arising are considered not to warrant the provision of further legal assistance.
In summary: the respondent mother has determined to proceed with an application for an adjustment of property interests; orders are required to state more precisely the regime which should regulate their parenting responsibilities; a contravention application has been withdrawn; issues arising in relation to a subpoena have been resolved, and; respondent’s application for orders permitting the children to travel outside of Australia has been dismissed.
These reasons for judgment should be read in conjunction with reasons that were published on 8 May 2019: see Merrell & Merrell [2019] FCCA 1184. Although the issues were addressed in a slightly different order, it is convenient to consider them in the manner dealt with below.
Property
By her Amended Response filed on 21 June 2019, the respondent seeks that there be “a fair and equitable division of property between the parties [to be] determined by the Court” and that the respondent “be excused from further particularise in her property orders until such time as the applicant] provides full financial disclosure.” This is unsatisfactory.
This relief is sought in circumstances where the applicant, who is an undischarged bankrupt, has complied with orders to file a statement of affairs with his trustee in bankruptcy and the parties have attended a conciliation conference at which there was no resolution of the respondent’s claim for an adjustment of property interests. Moreover, in May 2018, a final hearing in relation to property interests was vacated. At that time, the parties were represented by counsel. It was apparently recognised that the merit of pursuing any property application may be questionable. Since that date, the respondent has decided to press on.
The applicant’s evidence and submissions to this point are, in effect, that the parties have no equity in their asset pool. The applicant further submitted that he was, and remained, open to exploring means of resolving the respondent’s application including, as he submitted, that members of his family might try to accommodate the respondent’s demands. The applicant was stopped from expanding upon this submission in any further detail.
The respondent, who agreed that conciliation had not been possible, stated that she saw no point in a further conciliation conference.
In those circumstances, the application for an adjustment of property interests will be set down for trial, however, should the respondent not fully particularise her claim, the hearing date will be vacated. While she will be allowed an extended period in which to file a properly particularised claim for an adjustment of property interests, the applicant and the court are entitled to be informed of precisely what relief is sought.
Subpoena
The respondent had issued a subpoena to the directors of a company, Company Ltd. The parties have been in dispute in relation to the scope of that subpoena, however, it has now been resolved.
The respondent stated that the subpoena had now been complied with.
No further orders are required to address this issue.
Contravention
On 6 March 2019, the respondent filed a Contravention Application in relation to two alleged contraventions, the first alleged to have occurred on 14 February 2019 and the second alleged to have occurred on 4 March 2019. Upon consideration, the contravention application was withdrawn.
An order will be made that that application be dismissed.
Parenting orders
There are two children of the parties’ relationship, [X] born on … 2012 and [Y] born … 2009. It is clear beyond question that the parties’ parenting orders are problematic.
Those orders were final orders and were made by consent on 28 May 2018 and amended by a slip rule order made on 27 June 2018. When those orders were made, the parties were represented by counsel. Since those orders were made, the respondent moved from School G to Suburb J without any real or effective notice to the applicant.
By their Amended Initiating Application and Amended Response respectively, the parties seek orders so as to vary those final consent orders. Neither of them has addressed the necessity to demonstrate that a significant change in circumstances has occurred since the making of those final consent orders as to support a conclusion that there should be any change to those orders: Rice & Asplund (1979) FLC 90-725.
Nonetheless, the court may adjust those orders so as to remove ambiguity and otherwise make orders that are in the best interests of the children. I am satisfied that it is appropriate to do so in this case in circumstances where, as the evidence presently appears, the respondent has unilaterally relocated from Suburb G to Suburb L and, in doing so, has removed the children from their primary school at School G and enrolled them in Suburb J Primary School.
This has had a number of significant practical effects upon the applicant father who, yielding to the desire to see his children, has accepted the responsibility for travelling from Suburb G to Suburb J to collect and return them on each occasion that he is to spend time with them. It has meant that the applicant, who was to spend time with his children on alternative weekends and alternate Wednesday nights is now required to travel on four occasions each fortnight to do so. The applicant’s ability to spend time with his children is compounded by the need to:
a)book accommodation in Suburb J, at his own cost, so that the children may spend an evening with him on each alternate Wednesday;
b)deliver the son of his new partner to school in School G before taking the children to Suburb J, resulting in the children not arriving at school at times before 2:15pm on Monday.
The corresponding impact on the children is self-evident.
A further practical difficulty which poses a real impediment to the children spending time with their father has arisen on the occasions that the children have been too ill to attend school. The applicant’s evidence and submissions include that: (a) the respondent is intractable in relation to the operation of the existing order that the applicant is to return the children to school on Monday mornings; (b) the respondent has sought recovery orders against the applicant on the occasions that the children have been ill and where he has not returned them to school on Monday mornings; (c) greater certainty is required so that the parties’ focus is shifted from seeking opportunities to allege the breach of orders to instead making decisions which are in the best interests of their children; (d) no less than four anonymous reports have been made to the Department of Health and Human Services (DHHS) in relation to the applicant’s parenting capacity, one of which resulted in his new partner’s son being taken into foster care until the conclusion of that investigation. The impact of these events, including on the children, is apparent.
The respondent’s reply was that: (a) her motor vehicle is worth only $1,000 whereas the applicant’s vehicle is worth $13,000; (b) it is not feasible for her to collect the children; (c) she is enrolled in a course of study at University, which means that she is unable to collect the children on Mondays, the impact as her study commences at 10.00am.
Viewed collectively, those matters provide a sufficient foundation for the conclusion that there has been a significant change in circumstances and that the final consent orders should be modified. As the parties were self-represented, I addressed each of the consent orders and received submissions from the parties in relation to each of them. It is convenient to address the consent orders in relation to which the significant change in the party circumstances has meant that those orders should be changed.
Order 2 – equal shared parental responsibility. Although the parties had agreed upon equal shared parental responsibility, the respondent now seeks an order for sole parental responsibility. The evidentiary justification for her change in attitude is far from clear. I am not prepared to change the parties agreed final order on this matter. Whether I am persuaded to do so at some later stage will depend upon the extent to which the parties are able to discharge their obligations under these orders.
Order 3 – live with arrangements. The applicant was essentially untroubled by this order but sought to emphasise that it was integrally related to the question of equal shared parental responsibility and spend time arrangements. The respondent was content that the existing order should remain as is. Since there will be no change to the order for equal shared parental responsibility, so too there will be no change to the existing ‘live with’ arrangements.
Orders 4(a)-(b) – children’s spend time with their father. As stated above the applicant has encountered significant difficulties in relation to spend time. In particular, the respondent’s move from Suburb G to Suburb L has carried with it very large logistical challenges in securing that the children may spend time with their father. The near total burden of addressing those challenges has fallen to the applicant. Contrastingly, the respondent has, in effect, taken virtually no responsibility in facilitating the children’s spend time with their father. At a practical level, the applicant travels from Suburb G to collect the children from school in Suburb J each alternative Friday. He then bears the responsibility of returning the children each Monday morning (or Tuesday where Monday is a non-school day).
I have described the real problems which confront the applicant on those occasions when the children are sick. His submission, which resonated, was that he faced the immediate threat of a recovery order if the children were not returned to school on the Monday. For her part, the respondent made no offer to participate in the delivery or collection of the children, instead pointing to her own study commitments at University. As to this, the children’s best interests did not seem paramount in the respondent’s mind. I have also explained the additional difficulties now confronted by the applicant in relation to alternate Wednesdays and the costs which he bears in order to secure accommodation in Suburb J so that the children can spend time with him on those nights.
In addition, the applicant bears the added responsibility of securing the delivery of his new partner’s child to school at Suburb G.
In my opinion, although paragraphs 4(a) and 4(b) of the order secure the parties intended result that the children should spend four nights per fortnight with their father, the unilateral change in residence from Suburb G to Suburb L has made the current arrangement quite unworkable. In the course of submissions, I explored with the parties the various options which might make spend time more workable. As I explained to the parties, there is no perfect solution. For his part, the applicant is most concerned that revised orders are unambiguous. The applicant is also concerned that there be some greater stability in the children’s education. I agree in those submissions.
I consider that the applicant’s submissions recognise the need to give priority to the children’s education during school term. As the applicant submitted, with an average school term comprising a period of 10 weeks, the children will lose five Wednesdays per term with their father. By extension, they will lose 20 nights of time with their father over the course of any year should they no longer spend those nights with him. Using the 2019 gazetted school holidays as a guide, there are 14 days holiday at the end of term one and 16 days holidays at the end of term two followed by 15 days holidays at the end of term three and then 38 days over the Christmas break. The orders as made are designed to give the children the 20 days that they will lose by not seeing their father on alternative Wednesdays as days that they will instead spend with him during the whole of term one and term three of the school holidays together with an additional number of days over the Christmas long break.
While there is no ideal solution, I have concluded that the children should no longer spend alternate Wednesday nights with their father but instead that they should spend the whole of the term holidays with their father at the end of each of term one and term three. In addition, I consider that the children should spend further time will with their father during the long break over Christmas. This approach allows the children to continue to spend the same amount of time with their father each year.
A further difficulty which has impeded the smooth operation of spend time arrangements has, it appears, been the respondent’s decision to alter the date from which the children should commence spend time with their father in each term. For the avoidance of doubt, the orders will be refined to provide that such spend time commence from the first weekend after the commencement of each term.
Orders 4(c)-(d) – school holidays. I am satisfied that school holidays have become problematic because the text of the orders were drafted in terms which were conditioned upon the parties having agreed in writing as to the time that the children were to spend with their father. I am further satisfied at this stage that it has been largely impossible for the parties to secure agreement, whether in writing or at all, in relation to parenting issues.
Order 4(e) – special occasions. There have been frequent difficulties arising in relation to days such as Christmas Day, Good Friday and, it would seem, birthdays. Orders have been made which prescribe the precise times at which the children are to spend time with their father. If the applicant’s birthday should fall on a school day, the children are to spend that night with their father from the conclusion of school. Where his birthday falls on a weekend which is not a weekend that the children would spend with their father pursuant to the orders, the children will need to celebrate that birthday with their father on the next alternate weekend when they would otherwise spend time with him. Corresponding orders are made in relation to the respondent’s birthday. So too, mirror orders are made respecting Father’s and Mother’s days.
By reason that the children will no longer spend alternate Wednesdays with their father, their school holiday time and time on special occasions will be altered in the manner described above.
Order 4(f) – telephone contact. The applicant’s evidence and submissions support conclusions that:
a)he has sent text messages and follow-up text messages to remind the respondent of the children’s appointments to communicate with him by telephone on Tuesdays and Thursdays as was agreed. The applicant submitted that the respondent did not reply to those text messages or reminders and that, for the majority of the time, the children have had no time by telephone with their father. Those submissions were only faintly in contest;
b)he has provided not one, but two, mobile phones in order that the children might freely contact him and their grandparents (whom I note were in attendance at court). The respondent denied that the children had been prevented from using the mobile phones but submitted that they had been ‘broken’. This submission was made, unsupported by any evidence and, as the applicant submitted found no support in any of the text messages which have passed between the parties since May 2018. The father is to be permitted to provide the children with another phone.
These issues will, no doubt, the explored at the s 11F conference.
In the event that another phone is ‘broken’, orders may be necessary to facilitate that the children might contact their father more easily by other means. The necessity for such orders is underlined by the minimal telephone contact which the children have had with their father in the past 10 weeks. The respondent’s submission that the children had been able to contact their father each alternative Tuesday and Thursday without difficulty is a matter that may be explored by the family consultant who is to provide a s 11F report. To the extent that the respondent submits the children spend 1½ hours at a time on the telephone with their father, this is not borne out by the evidence.
Should it continue to be the case that there are difficulties in the children’s spend or contact time with their father, either during school term, school holidays or Christmas holidays those factors could weigh heavily in the consideration of any other parenting orders that may be sought, including in relation to international travel.
The parties are of course able to agree that the children might spend time with their parents on other occasions. However, on the only occasion this has occurred, the applicant agreed that the children should spend time with him while the respondent apparently had a tonsillectomy. It was the applicant’s submission that the respondent did not in fact have that surgical procedure but instead employed that time to move to Suburb L from Suburb G.
Changeover – The final consent orders do not provide for changeover. The evidence is replete with illustrations of the problems which this has caused. The parties were essentially agreed that, where changeover does not occur at school, it should occur at a police station that is closest to their residence. Orders will be made accordingly.
For the avoidance of doubt, the applicant should collect the children at the commencement of such time and the respondent shall collect the children at the end of such time (save that, in relation to Christmas, the children are to spend 24 four consecutive days with their father).
Order (5) – Accommodation. The existing order provided that the children’s time was subject to a condition that the younger child should have a separate bedroom. Having regard to the matters addressed in the first reasons, I am clear that this order was intended to secure the result that the child did not sleep in the father’s bedroom. Conversely, they were not intended to prevent the child sleeping in a bedroom with her brother or another child. The evidence makes clear that the parties’ financial circumstances are modest. As drafted, the current order is unduly restrictive and has been refined to address the intended need that the younger child should not sleep in the same bedroom as her father.
Order 6 – restraints. The applicant agreed in orders that restrained him from exposing the children to inappropriate content or filming them or installing any such devices in their bedrooms or permitting them to come into contact with heavy machinery. The applicant agreed that those orders remain in place, however, he submitted that a degree of reciprocity was appropriate. In particular, he noted that the children had been exposed to inappropriate content while watching television at the respondent’s home. The respondent denied this allegation. It is a matter that the family consultant may consider. In the meanwhile, I note that a constant theme in the respondent’s submissions was that there should be ‘reciprocity’ in relation to many matters. I am persuaded that it is appropriate that the children not be exposed to inappropriate content at the residence of either parent.
Order 7 – medical consultation. The applicant was likewise content that he should continue to attend for treatment as provided by this order.
Order 8 – school records. The parties were agreed that the respondent would authorise their school to provide the applicant with copies of school reports, photographs and school notices and that he be permitted to attend school functions of a kind that parents would normally attend. The applicant’s submission is that there has been a comprehensive failure to comply with this order. The respondent submits that all such records are now obtainable ‘online.’ The submission appeared, in effect, to confess and avoid that the respondent is obliged by this order to do what might reasonably be done to ensure that the order is obeyed. I do not accept the respondent’s submission that these matters can be secured by seeking access ‘online’. The applicant’s evidence is that on occasion when he has attended a school function he has been arrested. In addition to the orders that have been made, supplementary orders will be made that direct a copy of this order be provided to the children’s school. These are issues which the s 11F family consultant may also consider.
Orders 9 & 10 – medical issues. Again, the parties’ evidence and submissions confirm the difficulty that has obtained in relation to medical issues. By way of example only, the applicant has discovered that a child has been booked in for a surgical procedure about which he had not been consulted and for which his consent was not sought. He has had similar difficulties in obtaining any reliable supply of information in relation to the identity of the children’s treating medical practitioners or the treatment they are being given. The respondent appears to make similar complaints. Whatever be the true position (a matter to be considered by the s 11F family consultant), it seems that there has been a significant failure to recognise that the corollary of agreed shared parental responsibility is that each party should consult one another in relation to such issues.
Order 11 – contactability. The parties were agreed that they should keep the other informed at all times as to their current residential address and mobile telephone contact numbers. Yet again, there has been real difficulties in securing this information if only because the respondent relocated to Suburb L without any real notice and because she has, as she agrees, blocked the applicant on her mobile phone. To have done so fails to recognise that as the parties have equal shared parental responsibility, each of them is entitled to the reasonable certainty of being able to contact the other in the event that a sufficient need to do so should arise. As matters stand, there has been a very real failure to recognise the importance of equal shared parental responsibility.
Order 12 – international travel. The parties were agreed in final orders that upon the expiry of a Watchlist Order, each would provide the other with proper notice of any intended international travel. As discussed below this has been most problematic. The parties were further agreed that the existing Watchlist Order has now expired. Subject to what follows, I see no reason to alter the terms of the existing order. In my view, should a party intend to travel internationally with the children, then in addition to proper notice and details of the proposed travel, the order should also require them to provide a proposal for security for the return of the children, for the children’s contact time with their non-travelling parent and for the make-up time that they should have (either before or following the period of proposed travel).
Other matters – By the Amended Initiating Application and Amended Response each of the parties’ proposed further parenting orders that they sought. Many of the issues raised by the Amended Initiating Application and response respectively were addressed in the course of the parties’ submissions concerning the difficulties attributed to their final orders. I am not persuaded that there has been a change of circumstances which is of sufficient significance to warrant a wholesale revisiting of the parties’ final consent orders. In particular, as I explained to the parties in the course of argument I am not prepared to make any further changes to those orders until the s 11F report has been obtained.
For the avoidance of doubt, I specifically decline the respondent’s proposal that she should have sole parental responsibility for the children. Cogent evidence would be required before I was persuaded that there had been a change of circumstances of such significance that the consent order for equal shared parental responsibility should be revoked.
Nor do I accept that the parties should employ email as their primary means of communication in relation to parenting issues. I accept the applicant’s submission that communication via text message is a far more effective, immediate and reliable form of communication and one which has the added advantage that it is independently verifiable. For completeness, I note the applicant’s submission that real difficulty has been encountered in the manner and use of email in the past.
Travel orders
By Application in a Case filed on 5 March 2019, the respondent seeks an order that she be permitted to travel, with the children, to Country A. She also sought a further order that she be permitted, without the applicant’s consent, to apply for the issue of the children’s passports. By his Response, the applicant opposed the relief sought.
I have examined the affidavits filed by each of the parties.
For reasons which were not explored, passports have now issued for the children. In the event, the respondent agreed that, until further order, the children’s passports should be held by the Registrar of this court.
As noted, the respondent stated that she was presently undertaking a course of tertiary study at University, being a course. The respondent further stated that she was to complete this diploma in … 2019 and “would like to take a holiday after that.” No further details were provided in relation to the proposed travel. No itinerary was put forward. No proposal was made in relation to how the applicant would be permitted to maintain regular communication with the children while they were absent from Australia, or the intervals at which such contact would occur. The absence of any such details was the more troubling in the circumstance that there is a body of evidence supporting the applicant’s submission that the respondent has neither consulted him in relation to the proposed travel in … 2019, nor facilitated telephone contact between him and the children in any effective way since the final parenting orders were made in May 2018. I have also described the many problems which are encountered in relation to the children’s spend time with their father on alternative weekends.
When asked about her ability to provide security for her promise that she would return the children to Australia, the respondent replied that she had no financial resources, now lived in in rented accommodation and had no other means of providing security. The respondent stated that her parents, who live in Country A, run a business. She also drew attention to her modest financial circumstances. The respondent did not explain how it was that she could afford the costs of three return airline tickets that would enable her to travel with the children from Australia to Country A. No original airline tickets were produced. Security may be an issue.
She did, however, submit that she proposes to complete her diploma of legal services and intended to secure a career in Australia where she hoped to gain Australian Citizenship.
The applicant submitted that, in the exercise of the court’s discretion, the respondent’s application ought not be considered further until, at the least, the court has had an opportunity to evaluate whether the parties were performing and observing the parenting orders in a manner which more precisely reflected their obligations under those orders. Allied to this submission was that the parties’ consent orders record that they should have equal shared parental responsibility. It was submitted that international travel was a matter upon which the parties should consult and, as concerned any proposed travel from … 2019, that there had been no such consultation. I accept those submissions.
As importantly, it was submitted that in the circumstances of the respondent having relocated from Suburb G to Suburb L and with the further unilateral decision to change the school at which the children are being educated, it was not in their best interests to travel at this stage and that they ought not do so until they have had a greater opportunity to settle at their new school.
It was further submitted that the respondent had provided no details in relation to the proposed Country A travel which made consideration of the application most problematic.
I am not prepared to grant the present application. It is lacking in any detail and the chronic problems which attend compliance with the existing final consent parenting orders is a powerful factor which militates in favour of a conclusion that the court ought not exercise its discretion to permit the relief which is sought. The parties agreed that they should have equal shared parental responsibility. The respondent has not consulted with the applicant in relation to the proposed travel in … 2019. He knows nothing of the detail of that proposal having, it seems, been told about it for the first time in the course of the hearing.
Other matters
The children are now of an age where their views can be ascertained. An order has been made for a s 11F report to be obtained in September 2019. The matter will be adjourned for Mention on 24 February 2020. By then, the parties and the court will have a more clear understanding of whether the current parenting orders are being observed. So too, the respondent will have had an adequate opportunity to refine any proposal by which she seeks to be able to travel to Country A with the children. By then, respondent will also have had an opportunity to discharge her obligation of equal shared parental responsibility by consulting with the applicant in relation to such travel. Until those steps have occurred it would be premature for the court to consider any further application.
Having regard to the history of the matter an order will be made permitting that these reasons for judgment, together with those given on 8 May 2019, may be produced by the parties, DHHS or Victoria Police to a state court.
A further order will be made pursuant to s 68P of the Act making clear that, to the extent the provisions of the Order made this day may be inconsistent with an existing family violence or other order, the terms of this Order shall prevail.
In conclusion, I reiterate what was said to the parties at the hearing; namely, that they have agreed in final consent orders which are otherwise not amenable to alteration unless a significant change in circumstances is demonstrated. While the court has attempted to assist the parties in identifying areas where, and reasons why, their existing orders lacked precision and may be modified, it has also made arrangements for the children to attend a family consultant for a s 11F report so that their views may be more clearly understood.
As emphasised to the parties at the conclusion of the hearing I will reserve for further consideration whether it is appropriate that the court should entertain any further application for parenting orders.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge A Kelly.
Date: 3 July 2019
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