Q and Q - [2001] FMCAfam 150

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Q & Q [2001] FMCAfam 150

CHILDREN – Residence – contact – specific issues – Family Law Act 1975 (Cth) ss 60B, 68F(2).

COSTS – Orders by default – no appearance by Applicant Father – Family Law Act 1975 (Cth) s 117(2)(a).

B v B: Family Law Reform Act (1997) FLC 92-755.

Applicant:

S P Q

Respondent:

J A Q

File No:

ZB 4360 of 2001

Delivered on:

21 August 2001

Delivered at:

Brisbane

Hearing Date:

21 August 2001

Judgment of:

Rimmer FM

REPRESENTATION

The Applicant:

Did not appear

Solicitors for the Respondent:

McAlister & Cartmill

ORDERS

That the FATHER’S application filed at M on 24 April 2001 be dismissed.
That the CHILD, M R Q, born 26 October 2001, reside with the MOTHER and that she be responsible for the day-to-day care, welfare and development of the CHILD.
That the FATHER have contact with the CHILD as agreed between the parties, but failing agreement at least:
(a)each alternate weekend from 4 pm Friday to 4 pm Sunday;
(b)upon the CHILD commencing school, for one half of each school holiday period, being the first half in 2004 and alternating each year thereafter and in the second half in 2005 and alternating each year thereafter;
(c)from 2 pm on 24 December 2002 until 2 pm on 25 December 2002 and alternating every year thereafter;
(d)from 2 pm 25 December 2001 until 2 pm 26 December 2001 and alternating every year thereafter;
(e)on the CHILD’S birthday by the FATHER telephoning the CHILD between the hours of 5 pm and 6 pm on that day;
(f)from 10 am to 2 pm on the Saturday nearest to the CHILD’S birthday, that Saturday not being a contact day;
(g)should the CHILD’S birthday fall on a contact day, the FATHER is to deliver the CHILD to the MOTHER for her to enjoy contact on that day between the hours of 10 am and 2 pm;
(h)on Fathers Day from 10 am to 5 pm on that day if it is not a contact weekend. Should Mother’s Day fall on a contact weekend the FATHER is to deliver the CHILD back to the MOTHER on Mother’s Day at 10 am.
(i)telephone contact with the CHILD by the CHILD telephoning the FATHER between 5 pm and 6 pm each Wednesday. The MOTHER is to ensure that she assists the CHILD in initiating the telephone call to the FATHER between those hours.
That the parties equally share the responsibility and costs of travel associated with contact as follows:
(a)that at the commencement of contact the FATHER is to collect the CHILD from the MOTHER’S residence. The FATHER is to attend alone and unaccompanied by another person even in his motor vehicle and collect the CHILD from the front door of the MOTHER’S residence unaccompanied by anyone else;
(b)that at the conclusion of contact the MOTHER is to collect the CHILD from the FATHER’S residence. The MOTHER is to attend alone and unaccompanied by any other person even in her motor vehicle and is to collect the CHILD from the front door of the FATHER’S residence unaccompanied by anyone else.
That the MOTHER and FATHER are to communicate personally with each other in relation to any contact arrangements including contact change over and that no other person is permitted to be involved in contact arrangements or in contact change over.
That the parties are not to discuss issues of concern they have regarding the CHILD at contact changeover, that for this purpose they will establish a communication book and exchange that at times of contact by the book accompanying the CHILD to and from any contact occasions.
That both parties refrain from denigrating each other or any member of the other’s family in the presence of the CHILD.
That each party is to provide to the other details of any change of address and/or telephone number at least 7 days prior to such change.
That each party is to provide to the other party one months written notice of their intention to travel interstate with the CHILD at any time.
That neither parent be permitted to reside interstate with the CHILD without first giving the other parent one months written notice of their intention to do so.
That the FATHER pay the MOTHER’S costs thrown away on 16 July 2001 fixed in the sum $475. Such amount is to be paid to the MOTHER or her solicitor, McAlister & Cartmill, within one month of today’s date.
That the FATHER be served by the MOTHER with a copy of the Orders the Court has made today as soon as possible after issue of the Orders from the Court.
Pursuant to S65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A to these orders.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

ZB 4360 of 2001

S P Q

Applicant

And

J A Q

Respondent

REASONS FOR JUDGMENT

This is an application which was initially brought by the father, S P Q, in the M Magistrates Court, by way of a Form 3 application filed on

20 April 2001. In that application, he sought parenting orders. The mother has responded. She is therefore the respondent, and her response was filed on 13 July 2001. The proceedings were transferred from the Magistrates Court to the Family Court, and due to the notation made by the Magistrate, there was an administrative transfer to the Federal Magistrates Court, given the Magistrate had indicated that it was a matter within the jurisdiction of this Court.
The application initially brought was to seek a variation to the existing orders which had been made between the parties on 20 October 2000 relating to residence and contact of the child of the parties' marriage, M R Q, born 26 October 1998. Those orders provided that M reside with his mother, and that his father have contact with him two out of every three weekends from 4 pm Friday to 4 pm Sunday, and on other special occasions. The orders provided for collection by the father of M at the M Park, and the mother to collect him from the father's home at the conclusion of contact.
The father in his application in effect sought shared residence of the child. The mother is seeking the orders that are set out as final orders, in her response filed on 13 July 2001. In summary, she seeks that the child reside with her and that she be responsible for his day-to-day care, welfare and development. She seeks an order that she be solely responsible for the child's long term care, welfare and development, and that the father have contact with the child from

4 pm Friday to 4 pm Sunday each alternate week-end; that when the child commences school, half of the school holidays, being the first half in 2004, and alternate years thereafter; from 2 pm on 24 December until 2 pm on 25 December 2002, and alternate years thereafter; and from 2 pm on 25 December until 2 pm on 26 December 2001, and alternate years thereafter.
Further, it is sought that on the child's birthday, the father telephone the child; that the father have contact from 10 am to 2 pm on the Saturday nearest to the child's birthday if that is not a contact day and should the child's birthday fall on a contact week-end, then the mother should be entitled to have the child with her, returned by 2 pm on the child's birthday. She further seeks that on Father's Day, the father have the child from 10 am to 5 pm, and that the child be returned back to the mother by 10 am on Mother's Day, should that fall on a contact week-end, and that the father have telephone contact each Wednesday from 5 to 6 pm on that day.
The mother seeks specific orders in relation to travel, that is, that the parties equally share the responsibility and costs of travel with contact, such that the father collect the child from her residence unaccompanied, even in his motor vehicle, and deliver the child to the front door of the mother's residence, unaccompanied by anybody else; and that the mother, at the conclusion of contact, is to collect the child from the father's residence.
The mother seeks a stipulation that both parties attend personally on contact changeover, and that no other person is permitted to undertake responsibility. She seeks that the parties shall not discuss any issues of concern regarding the child at contact changeover, but rather do that through the use of the communication book which is to accompany the child on contact visits.
The mother seeks that the parties refrain from denigrating each other or any member of each other's family in the presence of the child, that each parent provide the other with details of change of address and telephone number at least seven days prior to such change occurring, that each party provide to the other one month's written notice of their intention to travel interstate with the child and that should either parent choose to reside interstate, the parties shall first attempt to resolve changes to contact which arises as a result of that move, through counselling, and shall not reside interstate without first obtaining the leave of the Family Court of Australia.
In relation to the application, the father did not appear when this matter was transferred and listed by the Court on 16 July 2001. The parties had each been notified of the dates for mention. On 16 July 2001 the Court made an order that the matter be listed for further mention today on 21 August and that the solicitor for the mother be granted leave to amend the mother's application to note the new date and time. It was also directed that the application by way of the response to be served on the father within seven days of the date of these orders, together with notice that the Court has granted leave to the mother to seek final orders by default in terms of her application if he did not appear today, 21 August; and the costs of that day were reserved to today.
There is an affidavit of service of S T M which indicates that the amended Form 3A response was served, together with the affidavit of the mother, on the husband at his address on 18 July 2001. The mother filed then a further affidavit. There is a further affidavit filed by leave today by S R C, indicating that this affidavit of the mother was served on the father on 16 August 2001. Further, a copy of the order was sent to Mr S Q at his address for service, 8 J Street, M, by the Court, following the last Court hearing.
I am satisfied that the father has notice of today's proceedings. It is now 20 minutes past 12 noon. There is no appearance by the respondent, and I propose to dismiss his application for want of prosecution, given that he failed to appear now on two occasions to prosecute his application since its transfer from M. I am satisfied that the application of the mother then contained in her response filed on 13 July 2001 should proceed on an undefended basis.

The law

The Court must apply the relevant principles of law in the determination of this application for parenting orders for both these young children. Residence, contact and specific issues orders are parenting orders. They arise in proceedings conducted under part 7 of the Family Law Act, section 60B sets out the objects of part 7 and the principles that underline those objects. They are subject to section 65E in that in determining the outcome, the best interests of the child or children is the paramount consideration and that is the overriding principle.
Section 60B provides that children have a right of contact on a regular basis, with both their parents and other people significant to their care, welfare and development. This emphasises the desirability of contact. "Regular" carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the child's best interests.
In deciding what the residence, contact and specific issue arrangements are that will promote the best interests of a particular child or children, the court must consider the various matters set out in section 68F(2). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular facts of the case. Paragraph (l) permits the court to take into account any other fact or circumstance that the court thinks is relevant. This ensures that the infinite variety of individual children's circumstances can be properly addressed, and that was the clear finding of B v B: Family Law Reform Act (1997) FLC 92-755.

The evidence

The mother has filed two affidavits in support of her application wherein she raises certain issues that she says need to be addressed by way of variation and amendment to the existing orders. I am satisfied, after considering the evidence of the mother, that given the requirement under the provision of section 65E for the Court to make orders which have the child's best interests as the paramount consideration, after consideration of those matters contained in section 68F(2), when determining this child's best interests, that many of the orders that the mother does seek are in fact orders which should be made to provide for M's best interests.
Clearly, the child has resided with his mother since the parties separated. These parties separated when M was young, on 12 May 1999. M was born on 26 October 1998. Therefore he was less than a year old at the time of separation. There is nothing which would satisfy me that it is not in his best interests, given his age and the length of time that he has lived in his mother's care, that he not continue to reside with his mother, and that she be responsible for his day-to-day care, welfare and development. I am not satisfied that there is sufficient evidence to demonstrate that the Court should change the legal position whereby both parties have jointly and severally the responsibility for their child's long term care, welfare and development, to a position where the mother be solely responsible for that.
It is important, given the objects set out in section 60B, that both parents remain involved in issues of concern about their child's ongoing care, welfare and development, and I am not satisfied that there is sufficient evidence to justify the Court making an order which places all of that responsibility in the hands of one parent alone.
I am satisfied that in this matter, given M's age and the history of conflict and contact, that there should be an order made which provides for M to have contact with his father every second weekend from 4 pm Friday to 4 pm Sunday.
I am satisfied that upon M commencing school, he should be able to enjoy one half of the school holidays with his father, being the first half in 2004 and alternating each year thereafter; and the second half in 2005 and alternating each year thereafter.
I am satisfied that Christmas Day should be shared on the basis that the father have contact from 2 pm on 24 December until 2 pm on

25 December 2002 and alternating every year thereafter; and from

2 pm on 25 December until 2 pm on 26 December in 2001 and alternating every year thereafter.
I am satisfied that there should be contact between the father and the child on his birthday as set out by the mother; that by the father being permitted to telephone the child, and for that purpose I will stipulate, given the history which outlines difficulty with regard to telephone contact, that the father be permitted to telephone the child on his birthday between the hours of 5 pm and 6 pm on that day.
I will further order that the father have contact on the child's birthday from 10 am to 2 pm on the Saturday nearest to the child's birthday, that Saturday not being a contact day; and that should the child's birthday fall on a contact weekend, then the father deliver the child to the mother so that she can enjoy contact to the child.
I will order then, should the child's birthday fall on a contact weekend, then the father is to deliver the child to the mother for her to enjoy contact with the child on that day between the hours of 10 am and 2 pm.
I will order that on Father's Day, the father is to have contact between
10 am to 5 pm on that day if it is not a contact weekend; that should Mother's Day fall on a contact weekend, the father is to deliver the child back to the mother on Mother's Day at 10 am.
I will order that the father have contact with the child by the child telephoning the father between 5 pm and 6 pm each Wednesday. For that purpose, the mother is to ensure that she assists the child in initiating the telephone call to the father between those hours. He is only not 3 yet, so he is a bit young to be taking that responsibility on without assistance.
I will order that the parties equally share the responsibility and costs of travel associated with contact, and to achieve that result, at the commencement of contact the father is to collect the child from the mother's residence. For that purpose the father is to attend alone and unaccompanied by another person, even in his motor vehicle, and deliver the child to the front door of the mother's residence unaccompanied by anybody else.
I will order that at the conclusion of contact, the mother is to collect the child from the father's residence. For that purpose the mother is to be unaccompanied by any other person, even in her motor vehicle, and is to collect the child from the front door of the father's residence unaccompanied by any other person.
I will order that the mother and father are to communicate personally with each other in relation to any contact arrangements including contact changeover, and that no other person is permitted to be involved in contact arrangements or in contact changeover. What I am saying is that both parents are to be responsible for making any variations and changes to the arrangements. They are also to be the people who attend personally for the changeover.
I will then order that the parties are not to discuss issues of concern they have regarding the child at contact changeover. For this purpose, they will establish a communication book and exchange it at times of contact by the book accompanying the child to and from any contact occasion.
I will order that both parties refrain from denigrating the other, or any member of the other's family, in the presence of the child.
I will order that each party is to provide to the other, details of any change of address and/or telephone number at least seven days prior to such a change occurring.
I will then order that each party is to provide to the other party, one month's written notice of their intention to travel interstate with the child at any time.
I propose to further make an order that neither parent be permitted to reside interstate with the child without first giving the other parent one month's written notice of their intention to do so.
An application has also been made by the mother as to costs. Clearly, on the last occasion the mother attended at Court, her costs were thrown away as a result of the father's non-attendance. In accordance with the provisions of section 117(2)(a), clearly that is a circumstance the Court should take into account and order that the father meet the costs of the mother thrown away. With respect to today's appearance, I am not satisfied I should order costs because the mother has been successful in relation to obtaining orders which she says promote the best interests of the child, and it appears, from reading the material, were necessary for the Court to make to regularise the arrangement for parenting between the two parties.
I will order costs therefore in accordance with those amounts put to the Court as appropriate by the solicitors for the wife, that the father pay the mother's costs thrown away on 16 July 2001, fixed in the sum of $475. Such amount is to be paid to the wife or her solicitors, McAlister and Cartmill, within one month of today's date.
I will order that the father be served with a copy of the orders the Court has made today, as soon as possible after issue of the orders from the Court by the mother.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Rimmer FM

Associate:

Date: 3 October 2001