Oskarsen and Camara

[2007] FamCA 1335

FAMILY COURT OF AUSTRALIA

OSKARSEN & CAMARA [2007] FamCA 1335

FAMILY LAW – CHILDREN – Contraventions withdrawn – Variations to orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Oskarsen

RESPONDENT: Ms Camara

FILE NUMBER: CAC 1340 of 2007

DATE DELIVERED: 16 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 16 October 2007

REPRESENTATION

COUNCEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms J.S. Elleray

SOLICITOR FOR THE RESPONDENT: Bayside Solicitors

Orders 

1. That pursuant to s.68L(2) of the Family Law Act1975 the interests of the child … born … October, 1996 be independently represented by a lawyer  AND IT IS REQUESTED  that Victoria Legal Aid arrange such independent representation.

2. That forthwith upon appointment by Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

3. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

AND THE COURT NOTES:  that Mr. Salce of Aitken Walker & Strachan, Solicitors was previously appointed the child representative in this matter.

IT IS FURTHER ORDERED

1. That the orders made herein on 24 June, 2005 (called “the 2005 orders”) be varied to provide that :

   (a)wherever the word “Canberra” appears, it be replaced by the word “Melbourne”;

   (b)wherever the word “ACT” appears, it be replaced by the word “Victoria”;  and

   (c)wherever the word “Melbourne” appears, it be replaced by the word “Sydney”;

   AND, after such variation, any reference to Melbourne airport shall be deemed to be a reference to Tullamarine Airport in Melbourne.

2. That paragraph (2)(b) of the 2005 orders be varied to provide that during the long summer Victorian school holidays in 2007/2008 the father have contact the child born … October, 1996, from 1 January, 2008 until 29 January, 2008.

3. That paragraphs (3) and (4) of the 2005 orders each be varied to provide that the words “in the scheduled arrival or departure time of a flight” be added after, the words “unforeseen delay”.

4. That paragraph (5) of the 2005 orders be varied to add the following words after the words “[Ms JR]”:

   “and without limiting the generality of this order, the mother may appoint as an agent for this purpose [Mr WC], [Mr AC], [Mr NC] and/or [Mr TR]”.

5. That paragraph (7) of the 2005 orders be varied to add the words “on a Qantas flight” after the word “travel” in the first line of the paragraph.

6. That for the purpose of contact during the long summer Victorian summer school holidays in 2007/2008 the father arrange for the child’s travel from Melbourne to Sydney and Sydney to Melbourne as provided in paragraph (7) of the 2005 orders (as varied) and, further:

   (a)in the event a flight booked by the father is a standby booking, the father make that clear in the email sent pursuant to paragraph (7) of the 2005 orders and do all things reasonably necessary to ensure that the fact it is a standby booking will not result in the child travelling to Melbourne on a flight that arrives in Melbourne later than 7:00 pm.; and

   (b)each party do all things reasonably necessary to complete the “Unaccompanied Minor” form provided by Qantas  PROVIDED THAT  the residential address provided by a party need not be his or her own residential address and may be the address of a relative or friend. 

7. That until further order each of the parties keep the other advised of any change to his or her mobile phone number  AND THE COURT NOTES  that at this time :

   (a)the mobile phone number of the mother is …;  and

   (b)the mobile phone number of the father is ….

8. That for the purpose of contact changeovers the following provisions shall apply, until further order:

   (a)each of the mother and father shall ensure that his/her mobile phone is turned on during a period commencing four hours prior to the flight on which the child is booked and concluding no earlier than :

   (i)in the case of the parent resident in the place of the child’s destination, the arrival of the child;  and

   (ii)in the case of the parent resident in the place of the child’s departure,

   a period of three hours after her actual departure on a flight; 

   (b)if a mobile phone number provided on the Unaccompanied Minor form is not that of the mother or father, the party who has provided details of that number do all things reasonably necessary to ensure that mobile phone is turned on during the periods referred to in sub-paragraph (11)(a) hereof;  and

   (c)each of the parties do all things reasonably necessary to ensure that the child is at the departure airport a reasonable time prior to the scheduled flight.

9. That the following applications filed by the parties be deemed to be applications for final orders:

   (a)form 2 application filed by the father on 9 July, 2007;

   (b)amended form 2A application filed by the mother on 10 September, 2007;  and

   (c)reply filed by the father on 12 October, 2007. 

10. That the father have leave to withdraw the following applications:

    (a)application for contravention filed on 9 July, 2007;

    (b)application for contempt filed on 9 July, 2007.

11. That the matter having been transferred to the Family Court of Australia at Melbourne by the Federal Magistrates’ Court at Canberra on 23 July, 2007, documents filed herein henceforth carry the proceedings number MLF 1798 of 1997.

12. That pursuant to s.62G(2) of the Family Law Act1975 a Family Report be prepared and released before 7 December, 2007 and each of the parties do all things reasonably necessary to attend appointments as requested by the family consultant, the mother to facilitate the attendance of the child as requested by the consultant.

13. That the applications referred to in paragraph (12) hereof be listed before the Honourable Justice Brown for directions at 9:30 am. on 13 December, 2007 and :

    (a)the father may appear by telephone;  and

    (b)the mother may appear by telephone or, provided she is represented by a legal practitioner, be excused attendance;

    PROVIDED THAT  a party who wishes to appear by telephone must provide the court with details of a landline number on which he or she will be available at that time by fax addressed to the associate to the Honourable Justice Brown on fax number … and the details of any such landline number not be communicated to the other party. 

14. That the reasons for judgment this day:

    (a)relating to the order for leave to withdraw the applications for contravention and contempt;  and

    (b)relating to interim parenting orders made this day;          

    be transcribed and copies made available to the parties. 

15. That a collated order be prepared, dated this day, containing the text of the 2005 orders as varied by these orders and in that collated order variations (whether substitution or addition of words, or additional orders relating to the father’s contact with the child) shall be marked in bold type

16. That pursuant to s.62B and s.65DA(2), of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

17. That pursuant to Rule 19.50 of the Family Law Rules2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: CAC 1340 of 2007

MR OSKARSEN

Applicant

And

MS CAMARA

Respondent

REASONS FOR JUDGMENT

1. The parties have a daughter who will turn eleven at the end of this month.

2. The matter has a very long history.  Final parenting orders were made by Mushin J, on 28 May 1998.  On that day his Honour restrained each of the parties from filing any further application in this Court without first obtaining leave of a judge, and ordered that any such application be made, in the first instance, ex parte.  That order is indicative of the extent and nature of litigation prior to that time and binds each of the parties. 

3. There has been litigation in this Court since that order was made.  The most relevant order is that of Watt J, made on 24 June 2005, which contains numerous orders, including some made by consent.

4. Not by consent, Watt J. made an order which noted the existence of the order made on 28 May 1998 pursuant to s.118 of the Act, and granted the father leave to bring applications in three stated sets of circumstances.  First, if he sought to take the child overseas; second, if he sought to restrain the mother from exercising her parental responsibility in certain ways, after being given notice of her intention to do so; and third, in the event his usual place of residence changed from Melbourne, to bring applications to vary the contact orders made that day by Watt J.  I cannot say why there was no reciprocal order granting the mother leave to bring an application if, for example, her place of residence changed.

5. There have also been proceedings in Canberra, as I understand it, in the Federal Magistrates' Court.  Before me are copies of orders made by Federal Magistrate Brewster on 21 March, 2006 and 10 April, 2006, both relating to travel arrangements for the child, and other orders may well have been made.  When the s.118 order was made in May 1998, the Federal Magistrates’ Court did not exist, so was not contemplated in Mushin J’s orders.  On its face, that order relates to applications filed in this Court and may not catch applications filed in the Federal Magistrates’ Court.

6. The father subsequently filed three applications in Canberra on 9 July 2007, being an application (by way of a form 2) to vary the existing contact orders, a contravention application alleging at least five breaches of the orders made by Watt J, and an application seeking that the mother be dealt with for contempt, relating to some of the same alleged breaches of the orders of Watt J.  That is, the two breaches particularised in the form 19 application for contempt are identical to alleged breaches 4 and 5 particularised in the form 18 application for contravention.

7. The front page of each application contains provision to nominate whether the application is filed in the Family Court of Australia, the Family Court of Western Australia or the Federal Magistrates’ Court of Australia.  On each, the applicant (the father) nominated this court.

8. The father did not seek leave to file those applications.  He has told me that he understood from Brewster FM he did not need leave.  The applications may have come before Brewster FM in Canberra but they were filed in this court.  Certainly, the father did not need leave to apply to vary orders arising from his move from Melbourne to Sydney.  However, that provision does not extend to applications for contravention or contempt and I doubt the accuracy of the assertion that leave is not necessary to file them in this Court.

9. I have suggested to the father that a focus on the child would more effectively be achieved by concentrating at this time on the form 2 application filed by him, in which he seeks to vary parenting orders.  The mother's form 2A, initially filed on 23 July and amended on 10 September, is responsive to that, as is the father's reply, which responds to matters raised in the mother's response.  The father expressed concern that a withdrawal of the applications for contravention and contempt could lead to a repetition of earlier events in the Federal Magistrates' Court; he said that when an application for contravention brought by him was struck out, or withdrawn in that court, he was not in a position to subsequently rely on alleged breaches of orders which occurred prior to that.  He fears he could be estopped, in a sense, from bringing an application in respect of these alleged breaches in the future.

10. I have done my best to make it clear that that would not be the inevitable consequence of these applications being withdrawn.  The father could seek leave, at some time in the future, to file an application for contempt or an application for contravention, and in that application he could raise the alleged breaches particularised in the documents to which I have referred, together with any subsequent alleged breaches.  It would then be a matter for the Court, on an ex-parte basis (that is, without service on the mother) to determine whether he should have leave to proceed with those applications.  I do not say this to encourage him in that course but to illustrate the process he would need to undertake.

11. In these circumstances I will grant the father leave to withdraw those applications, without making any determination of them.  I will order that these reasons be transcribed; a copy will be placed on the court file, and a copy provided to each of the parties.  They can be referred to in the course of any future litigation, if necessary.

12. I do not propose to rehearse the long history of proceedings between the parties, which have a 1997 commencement date in this registry.  Orders to which I have earlier referred were made by Mushin J on 28 May 1998.  They discharged all previous orders and provided for the child to live with the mother.  They also provided that the mother have the sole duty and responsibility to make all decisions with respect to the child's long-term and day-to-day care, welfare and development.

13. Amongst other orders his Honour made that day were orders restraining each of the parties from initiating any application in this Court pursuant to the Act without first obtaining leave from a judge of the Court; the order required any such application for leave to be made in the first instance on an ex-parte basis.  As noted earlier, that such an order was made by Mushin J, at the end of a hearing, is indicative of the level of litigation by the time the child was 18 months old.

14. The matter came before Watt J in June 2005, by which time a child representative had been appointed.  His Honour made a number of orders, some by consent and some not by consent. Orders provided for the father's contact with the child, and took into account the fact that at that time, the mother and child were living in the ACT, and the father was living in Melbourne. Orders dealt with the actual time the father was to spend with his daughter in each school holiday period, with arrangements for transport between the parents’ respective States and with access by telephone, email and correspondence.  Those orders were made by consent.

15. His Honour made a number of additional orders, not by consent.  He reiterated the earlier order that the mother have sole parental responsibility for the long-term care, welfare and development of the child, subject to paragraph 11 of his orders.  Paragraph 11 required the mother to give 60 clear days notice of an intention to alter the child’s circumstances in significant ways.  For example, she was required to give notice of an intention to change the child’s residence from the Canberra area, to travel overseas, to change the child’s religion, to attend a school which was not a State government school or not within the ACT, or to undergo elective surgery for which parental consent was required.  Further, Watt J made the order giving the father leave to bring an application in certain specified circumstances; that is, he would not have to apply, pursuant to section 118, before bringing an application in defined circumstances. These were seeking to take the child overseas, asking the court to restrain the mother from taking a parenting decision of which she had given notice and him moving from Melbourne and seeking to vary the contact orders. 

16. As noted earlier, the father did, indeed, move from Melbourne. He moved to Sydney.  The mother, too, moved from the ACT.  She moved with the child to Melbourne.  The father has complained that the mother did not give him proper notice, pursuant to Watt J’s order, of the decision to remove the child from Canberra and to take her away from her school there. The mother has deposed to circumstances relating to her then husband (she deposed he was terminally ill) that resulted in significantly less than 60 days notice being given of that proposed move.

1. In support of his interim application, the father relied on four affidavits sworn by him.  Two were sworn on 18 June 2007 and filed on 9 July, and two were sworn on 11 October 2007 and filed on 12 October.  The mother relied on two affidavits sworn by her, one sworn on 18 July and filed on 23 July and one sworn on 10 September and filed on 10 September.  She also relied on an affidavit filed today, with leave, sworn by Maria Chouridis, the solicitor who has the conduct of her case. 

2. It would be trite to say that the history is contested.  The parties agree on very little and the court is asked to make sense of accounts suffused with passion, and of bitterly disputed narratives.

3. The parties do agree that the orders made by Watt J. need to be varied so all references to Canberra are replaced with references to Melbourne, all references to the ACT are replaced by references to Victoria and all references to Melbourne are replaced by references to Sydney.  I will do that.  It is my intention at the end of this hearing to sign a composite order, which will set out the effect of variations made today and restate all relevant existing parenting orders.  In my view the parties should have one document which contains the current orders, rather than two which need to be cross-referenced to ascertain the effects on one of variations contained in another.

4. The father has told me that a number of orders sought in his application and reply, which relate to an aspiration to take the child to the Philippines, are not pressed at this time.  Arrangements for that travel cannot be made for the coming summer school holiday period (when she is to have time with him) and he believes she should not be taken out of school for such travel.  He has indicated an intention to seek orders that would allow him to travel with the child in the 2008-2009 summer school holiday period; that can be considered at the final hearing of the competing applications. 

5. This means that a number of orders sought by the parties (relating, for example, to passports, itineraries and phone calls when the child is out of Australia) are not pressing at this time.  What is pressing is the question of appropriate arrangements for upcoming holiday travel. 

6. I make it clear I am very concerned about the effect on the child of this continuing litigation and propose to give this matter some priority.  I will be ordering the preparation of a family report, to be released by 7 December 2007. The parties and the child will meet with a family consultant at this registry in late November.  When the case comes back before me for mention, each will have a copy of the family report.  An independent children's lawyer should then be present and will have had the opportunity to consider that family report, too.  My present intention is to list the matter for directions before me at 9.30 am on 13 December.  The father may appear by telephone on that date, as can the mother.  If the mother is legally represented, she is excused attendance.  I make it clear that that is not a hearing date; I will be determining what needs to be done to get the case ready for trial.

7. The current orders which set out the time the father is to spend with the child - to use the terminology of the present legislation - are contained in paragraphs 2(a) and (b) of the orders of Watt J of 24 June 2005.  Paragraph 2(b) relates to the long summer school holiday period, which is fast approaching.  In 2006, and each alternate year thereafter the child was to spend 28 days with the father from the last day of the school term.  In the other years she was to spend 28 days with him, commencing on 2 January.  The order appears a little confusing on its face but it is common ground that pursuant to the order, the child would have contact with the father for 28 days, commencing on 2 January, 2008. 

1. The orders were posited on the child going to school in the ACT.  The ACT school year routinely commences in early February;  no doubt, that is why the orders assumed the potential for 28 days between 2 January and the commencement of the first term of the new school year. The child is now going to school in Victoria, where the school year starts earlier.  The Department of Education (Victorian Government) website notes that term 1 in 2008 is to commence on 29 January.  However, that is a “pupil free” day.  Students commence on Wednesday 30 January and the first term concludes on 20 March.  Thus, the options are for the father to have less contact than that specified (as there are not 28 clear days between 2 January and the start of the school year) or for his contact to start earlier than 2 January.  He seeks that his time with the child start earlier, the mother seeks that it conclude on the last day of the holiday period which would reduce his time with the child by a day.

2. I am satisfied that the period of time with the father (28 days) is a more significant part of the order than the commencement date. I am aware that the order as drawn would mean that in each second year, the child would have Christmas and New Year with the mother, and in each other year she would have Christmas and New Year with the father.  If her first day of school in 2008 is 30 January, she needs to be home in Melbourne by the 29^th.  The period will commence in 2008 on 1 January.  It will run to 29 January.  I do note the note (numbered C) to the orders of Watt J., which recorded the parties’ intention for the father’s contact to commence 30 days prior to the commencement of term one, however the child is now eleven, and arriving home from Sydney on the day before school starts should be manageable. The alternative would be to cut further into the mother’s time with her, which I am not satisfied would be in the child’s best interests.  That disposes of the first issue in dispute. 

3. The second issue which has to be considered, is whether orders should require travel be between Tullamarine airport and Sydney airport, rather than Avalon airport and Sydney airport.  That is no longer in issue, as the father does not seek that the child travel by Jetstar in the coming school holidays, or at all.  He seeks that she travel by Qantas, on a flight leaving from and returning to Tullamarine airport.  I accept that to be his intention and will include a provision in the orders to that effect. 

4. The third, and most contentious issue, is whether the child must be booked on specific and fixed flights, or whether she can be booked standby. The father is employed by a travel organisation and pursuant to that employment, he has certain staff benefits. Those staff benefits include modestly priced travel for categories of people, which include his daughter.  His evidence is that if the child travels on that basis, her fare (at the moment) will be $103 return.  If she must be booked on a fixed flight, it will be a significantly higher amount.

5. Sometime after the orders were made by Watt J in 2005, the father wrote to the court, seeking clarification or advice about the issue of staff benefits.  Tendered as exhibit 1 is a letter to the father from the associate to Watt J, in response to that letter.  In the last paragraph on the first page, she advised that His Honour had directed her to send to both parties, and to the Federal Magistrates Court in Canberra, a copy of the transcript of the proceedings before him.  It does not seem that a copy of the letter itself went to the mother's solicitors, which is most unfortunate.  It should have gone to the mother's solicitors and to the independent children's lawyer; the latter may have been discharged by then, but it should have gone on his file. 

6. In that letter Watt J's associate advised that she understood that the father's request arose:

   . . in part from your understanding that his Honour ordered you to use your staff benefits in the form of airfare discounts to pay for your daughter's travel contact.  The current orders in relation to contact were made on 24 January 2005, and all the paragraphs of that order that deal with contact were made by consent.  Paragraph 6 deals with the costs of travel and on its face the order does not require or prevent the use of your staff benefits for the purpose of funding travel costs.

7. The orders, as the associate advised, are silent on the point.  This is not a new issue; unhappiness between the parties about the arrangements for travel have generated earlier litigation.  On 23 July this year Brewster FM made an order in the Federal Magistrates Court in Canberra, transferring the case to this registry of this court.  In paragraph 3, he made an order in these terms:

   That the orders made in the Family Court of Australia on 24 June 2005 are varied to provide that for the upcoming September/October holidays:

   (a)      The child is travel from Melbourne to Sydney.

   (b)      The father is to book and pay for fixed flights for this purpose.

   (c) The father is to notify the mother at least seven days prior to those flights by email.

8. An earlier order of Brewster FM, dated 10 April, 2006, related to specific flights on which the child was to travel in the school holidays that month. 

9. Counsel for the mother has submitted that the order of 23 July, 2007 means, or her client believed it meant that all airfares, from that time on, had to be booked on the basis of a specific fixed flight. That is clearly not the import of that order, which could not be clearer. The Federal Magistrate included a paragraph (paragraph 4) noting that the order in relation to travel for the September/October school holiday period was made on the assumption that the matter may not come before the Family Court in Melbourne prior to those next holidays, and was not intended in any way to preclude the Family Court from varying that order.  That is a courteous note, reflecting comity between courts which share the jurisdiction.  His Honour was clearly keen to ensure an arrangement was in place which could operate if the case had not been determined by that next holiday period. As it transpired, it was not determined, demonstrating the prudence of his decision.

10. The mother has expressed a number of concerns.  Importantly, the parties are apart on a significant evidentiary matter.  The father's position is that the child has never failed to travel between the State in which she lives with her mother and the State in which she has contact with her father by reason of a seat not being available for her on the flight on which he booked her, on a standby basis.  His evidence is that on two occasions the child did not travel on the flight which he had advised the mother she was to travel, on a standby basis.  The first was 23 April 2007;  he attributes the child’s travel on a later flight to her missing the plane as a result of extreme weather conditions in Sydney that day, which caused problems with both road and air transport.  The second was on 1 October when, he deposes, all flights from Sydney were delayed due to the bushfires and high winds in Sydney.  As a result, the airport was in turmoil and only his connections meant he was able to get the child onto a flight to Melbourne sometime between 5 pm and 6 pm.

11. Although the mother swore a lengthy affidavit recently, she said nothing in it on this point.  Through her counsel it is put that the child has never travelled on the flight on which the father advised he had booked her standby.  That is, it will be her case (although there is not yet evidence before the court of it) that on not one occasion has the child travelled on the standby flight booked; on every single occasion that flight has been full, and on every single occasion the mother has had to wait for a seat to become available for the child on the next or a subsequent flight. 

12. As noted, there is no evidence of this in the lengthy affidavit the mother swore on 7 September, 2007, in which she deposed to numerous concerns and problems with contact. Some scepticism about the reliability of standby flights may be reasonable, having regard to the fact that twice this year, the child has not travelled on the original standby booked flight;  the competing claims of the parties will need to be determined, after more objective evidence than competing assertions is adduced.

13. I do not propose to require the father to book the child on fixed flights for this coming summer holiday travel.  I will make a raft of interim orders to deal with matters including the provision of mobile phone numbers, the completion of the unaccompanied minors form and advice of any changes to flights. Each party will be required to keep the other advised of a mobile telephone number at which he or she can be contacted, and I will note the parties’ existing mobile phone numbers, as given to me today.

14. I will order that each party include a mobile phone number on the unaccompanied minor form and ensure it, (or, if it is different to the mobile number included in this order, that phone) is charged and turned on during a specified period before and after travel. 

15. I do propose to restate paragraph (5) of the orders of Watt J, an order which the mother seeks to have discharged in the long run; restating it will make no difference to that application to discharge.  But I will add to it so it is clear that each party is at liberty to use an agent known to the child for collection and return arrangements, other than those named by Watt J, and I will specifically include the three people the mother has referred to.  All are relatives of the father and I make it clear that they are not precluded from delivering or collecting the child, however unhappy is their relationship with the father. The responsibilities for Melbourne drop-off and returns is with the mother and she may arrange for anyone she pleases to be involved, so long as they know the child and are not one of the three people included in Watt J’s original order.  I make it clear to the father that it is not a matter for him who is at the other end, as long as that person is known to the child and is not one of the three excluded people; he needs to realise that he is unlikely to know who is and is not known to the child. In the same way, the mother cannot know every person known to the child in Sydney and it is for the father to make appropriate arrangements at that end.

16. There have been a number of problems about advice to the other parent of changes to plans. The orders of Watt J provide that in the event of unforseen delay or interruption to flight schedules, the father authorise a Qantas employee to advise the mother by phone of them. That can obviously be done if it is an airline problem, but Qantas cannot know that a parent is delayed, and cannot be expected to run a message service between parents. A parent cannot control the weather or bush fires but parents bound by orders such as these must make valiant efforts to ensure children get to airports on time.  I will make orders to deal with advice.

17. At this stage I do not propose to make any orders in relation to phone contact.  I do note the disagreement between the parties.  Watt J's orders were made on the basis of a notation that the husband proposed to change his provider to Vodafone, because that would be cheaper for the mother.  His evidence is that he did that, but the mother subsequently changed her own provider to Telstra.  In support of that, he refers to an annexure to her affidavit of 18 July.  He has subsequently changed to Network 3, a provider which he says offers benefits to him.  That summary illustrates the continuing difficulties the parties have in sorting out matters between themselves. 

18. Judges do not have magic wands and cannot be magicians.  What they can do is make findings of fact, on admissible evidence, and determine the orders which will apply, with the touchstone always being the best interests of the child.  What this case needs is a judicial determination.  I have offered the potential for further conciliation counselling, which would be available, but – absent agreement – there is no point in making an order that that to occur.  The Family Law Act1975 makes very clear the importance of parents agreeing on matters which involve their children, but “agreement” cannot be imposed. 

19. I will otherwise adjourn the applications to a mention on 13 December, before me.  The father may attend by phone, as may the mother.  If she is represented, she is excused attendance.  The purpose of that listing is not to consider other variations to orders, or to change what is to happen for this summer holiday period.  The purpose is to consider what needs to be done to get the matter on for trial.  The parties can anticipate a short hearing that day. 

I certify that the preceding 42 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

16 October 2007