RANGAN & RANGAN (No.2)
[2015] FCCA 3451
•18 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RANGAN & RANGAN (No.2) | [2015] FCCA 3451 |
| Catchwords: PRACTICE AND PROCEDURE – Variation of order – application to vary order that was never made. PRACTICE AND PROCEDURE – Previous interim parenting orders incorporated into current parenting orders. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC |
| Cases cited: Bright & Bright v Bright & Mackley (1995) FLC 92-570 Rangan & Rangan [2015] FCCA 1868 Rice v Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 |
| Applicant: | MR RANGAN |
| Respondent: | MS RANGAN |
| File Number: | SYC 2488 of 2015 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 17 December 2015 |
| Date of Last Submission: | 17 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Winfield |
| Solicitors for the Applicant: | Paul Marsh & Associates Solicitors |
| Solicitor for the Respondent: | Ms Ng |
| Solicitors for the Respondent: | Metta Legal |
| Independent Children's Lawyer: | Ms Weber |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
UNTIL FURTHER ORDER
Orders (1), (2) and (3) made on 2 July 2015 are discharged.
The children X born (omitted) 2010 and Y born (omitted) 2012 are to spend time with the Applicant Father as follows:
(a)Each weekend from 9:00 am on Saturday until 5:00 pm on Sunday with the exception of:
(i)the weekend of Saturday 2 January and Sunday 3 January 2016;
(ii)the weekend that includes Mother’s Day in 2016; and
(iii)the mother’s birthday being (omitted) 2016;
(b)from 3:00 pm on Christmas Day 25 December 2016 until 12:00 noon on Monday 28 December 2015;
(c)from 9:00 am on Saturday 16 January to 5:00 pm on Monday 18 January 2016; and
(d)from 9:00 am on Saturday 23 January to 5:00 pm on Australia Day 26 January 2016.
The children X and Y will spend time with the Respondent Mother at all other times.
For the purposes of changeover where the children go from the care of one parent to the care of the other in order to facilitate the above Orders, the Mother or her nominee being a responsible adult known to the Father is to deliver the children to the Father in the Food Court of the (omitted) Shopping Centre at (omitted) at the commencement of the time and the Father is to return the children to the Mother or her nominee being a responsible adult known to the Father at the same place.
The children’s time with the Father is subject to the Father:
(a)Ensuring that the children are in bed by 9:00 pm;
(b)Ensuring that the children sleep in their own bed or beds; and
(c)Ensuring that the children sit down at meal times to eat.
The Father is to facilitate a telephone call for up to 30 minutes between the mother and the children each night they are in the Father’s care, with the Father to initiate the call to the Mother’s mobile telephone number between the hours of 6:00 pm and 7:00 pm.
The Mother is to facilitate a telephone call for up to 30 minutes between the Father and the children each Wednesday, with the Mother to initiate the call to the Father’s landline.
The Mother is permitted to take the children out of the State of New South Wales as follows:
(a)During any time that the children are in her care under these Orders;
(b)In the event of an emergency within the Mother’s family who live interstate the Mother will give the Father twenty-four (24) hours’ notice with such notice to advise the nature of the emergency and the length of time the mother expects that she and the children will be away; and
(c)The children’s time with the Father will be suspended for a period of not more than ten (10) days or for the period of time that the children will be interstate, whichever is the shorter period.
The Father and the Mother are each restrained from:
(a)Making critical or derogatory remarks about the other parent to or in the presence or hearing of the children or either of them;
(b)Showing or allowing the children to see any documents filed in these proceedings;
(c)Discussing these proceedings or any matter arising from these proceedings with or in the presence of hearing of the children or either of them; and
(d)Questioning the children in a manner that is critical or derogatory of the other parent.
The Response to an Application in a Case filed in Court on 17 December 2015 is dismissed.
The Application is adjourned to 3 February 2016 for further mention at 10:00 am.
The Independent Children’s Lawyer has liberty to apply to relist the Application on seven (7) days’ notice.
IT IS NOTED that publication of this judgment under the pseudonym Rangan & Rangan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2488 of 2015
| MR RANGAN |
Applicant
And
| MS RANGAN |
Respondent
REASONS FOR JUDGMENT
Application in a Case
This is an Application by the father to spend time with the parties’ two children, X, aged 5 years and 9 months, and Y, aged 3 years and 3 months, over the Christmas/January long school holidays. The children currently live with the mother and spend time with the father by an earlier Order of this Court made on 2 July 2015.
The mother opposes the Application. Not only does she oppose the Orders sought by the father but she seeks to reduce the children’s time with him, so that they do not spend any overnight time with him at all.
The Independent Children’s Lawyer does not support either proposal but has tendered a Minute of Proposed Orders providing for the children to spend time with the father over the Christmas period and for two periods of several days at a time in January.
Orders Sought
The father, by his Application in a Case filed on 15 December 2015, seeks orders that the children should spend time with him over the December and January period:
a)From 9:00 am on Saturday 19 December to 5:00 pm on Sunday 20 December;
b)From 3:00 pm on Christmas Day to 3:00 pm on 3 January 2016; and
c)From 9:00 am on Saturday 16 January to 6:00 pm on 26 January 2016.
He also seeks an order for “Such further or other times as the parties may agree between themselves”.
The mother, by her Response to an Application in a Case filed on the date of the hearing, seeks these Orders:
1. That order 1 of the orders made on 2 July 2015 be discharged.
2. That the child[1] spend time with the father each alternate Saturday from 9am to 5pm, commencing on 26 December 2015.
3. That the child spend time with the father on Christmas Day from 3pm to 6pm, and on Boxing Day from 9am to 5pm.
[1] sic
4. That any previous orders restricting the mother from travelling interstate be dispensed with.
5. That the mother be permitted to travel with the child to Melbourne during the upcoming school holiday period.
The Independent Children’s Lawyer submitted a Minute of Proposed Order suggesting Orders that, in addition to any other time the children spend with the father under the orders of 2 July 2015, the children should spend time with the father during the 2015/2016 Christmas school holidays as follows:
a)From 3:00 pm on 26 December 2015 to 12:00 noon on 28 December 2015;
b)From 9:00 am Saturday 16 January 2016 to 5:00 pm Monday 18 January 2016; and
c)From 9:00 am Saturday 23 January 2016 to 9.00 am Tuesday 26 January 2016.
Evidence and Submissions
The father relied on his affidavit of 15 December 2015. He deposes that he has been seeing the children regularly every Saturday in accordance with the Orders of 2 July 2015. He annexed to his affidavit a Contact Report from Connecting Families about the father’s supervised time with the children on 26 June 2015.
The father wishes to have the children spend extended time with him over the school holidays because his mother, the children’s paternal grandmother, will be visiting from (country omitted) between 15 and 30 January 2016 and he would like the children to be able to spend time with her. There are also various extended family functions over this time.
The mother relies on her affidavit of 15 December 2015. In her affidavit she complains that the children often misbehave after they return from spending time with their father and often come home very hungry.
She deposed that she did not agree to the children spending ten consecutive nights with the father, as she believed that the younger child, Y would be very anxious and distressed without her. She also felt that the older child would be anxious, but not as much.
The mother seeks a discharge of Order 1 made after an interim hearing on 2 July 2015 (Rangan & Rangan[2]) which provides that until further Order the children are to spend time with the father each weekend from 9:00 am on Saturday until 5:00 pm on Sunday. She complains that since 6 July she has not had any weekend time with the children, and says:
I would like for the father to spend time with the children every second weekend and not every week.[3]
[2] [2015] FCCA 1868
[3] Affidavit of Ms Rangan 15.12.2015 at paragraph [23]
In her affidavit the mother sets out her proposal for the children to spend time with the father over the holidays, saying at [21]:
I am willing to provide the Father with the following time over the Christmas Holiday period:
a. From 3.00 pm to 6.00 pm on 25 December 2015; and
b. From 9.00 am on Saturday 26 December 2015 to 5.00 pm on Sunday 27 December 2015.[4]
[4] Ibid at [21]
However, this is at odds with the order sought by the mother in her Response to an Application in a Case:
That the child spend time with the father on Christmas Day from 3.00 pm to 6.00 pm, and on Boxing Day from 9am to 5pm.
There is no mention of the proposed overnight time on Boxing Day or any time on 27 December.
Even more curious is the mother’s explanation for the discharge of a purported Order restraining her from travelling interstate. In paragraph 24 of her affidavit the mother deposes:
I would also like for Orders restraining me from leaving the State to be dispensed with. I live in Australia and have done so since 2002. I have no intention of leaving the country or relocating. My children are well settled at school and I day care. I would just like to be able to visit my relatives who live in Melbourne over the Christmas break. For the past five (5) years I have not had a holiday with the children. The father did not allow this.[5]
[5] Ibid at [24]
Bemused by this application and the evidence offered in support, I asked the mother’s solicitor when this order had been made preventing the mother from leaving the State, as I could see no sign of such an order on the Court file, and the matter has been in my docket since its first return date. The father’s lawyers were equally unaware of this purported order.
The mother’s solicitor told the Court that she had only recently taken over carriage of the matter and could not throw any light on the existence or otherwise of this mysterious order. I told her that there was no record on the Court file of any order to that effect ever having been made.
The mother’s solicitor sought instructions from her client and then submitted that her client was possibly confused with the Order made on 24 April 2015 placing the children’s names on the Family Law Watch List. I explained that this Order only operated to prevent the children from being removed from Australia.
Conclusions
The father has provided evidence as to why he wishes to spend some extended time with his children over the Christmas/January school holidays, due to the visit by the children’s paternal grandmother and various extended family functions.
The Independent Children’s Lawyer submitted that it was appropriate for the children to spend time with their paternal grandmother over the holidays and proposed two shorter period of overnight time. The proposals by the Independent Children’s Lawyer appear to be in the children’s best interests (see Family Law Act 1975 (Cth)) as it is usually beneficial for children to develop a relationship with members of their extended family (Bright & Bright v Bright & Mackley[6]).
[6] (1995) FLC 92-570
It would appear that there is a benefit to the children in having a meaningful relationship with their father as well as their mother and there is no evidence of any need to protect them from physical or psychological harm at their father’s hands (Family Law Act 1975, s.60CC(2)). By comparison, the mother has tendered a letter dated 7 August 2015 from a psychiatrist, Dr M, stating that the mother has been under Dr M’s care since 18 July 2014 “for the management of Adjustment disorder with mild depressive features”.
The evidence at this stage does not support a finding that the children are at risk of physical or psychological harm from the mother.
The mother seeks a significant reduction in the amount of time that the father has been spending with the children since Orders were made after an interim hearing on 2 July 2015. The reduction is from two days a week including one overnight to one day a fortnight, for no other apparent reason than that is what the mother wishes.
The mother seeks a variation of a parenting order made only 5 months previously. It has been held in Rice v Asplund[7] that a court should not “lightly entertain” an application to reverse an earlier order. The court would need to be satisfied by the party seeking to vary the order that there is some changed circumstance that would justify such a serious step, some new factor arising or some factor which was not disclosed at the previous hearing which would have been material.
[7] (1978) 6 Fam LR 570; (1979) FLC 90-725
The mother was legally represented at the previous hearing and there is nothing to show that some factor was not previously disclosed that would have been material. There is no evidence of any changed circumstance or now factor arising. This is nothing more than the mother seeking to have the earlier order reconsidered because it is not to her liking.
There has been no evidence offered of any change of circumstances where the best interests of the children would require the Court to consider that the children’s best interests would require the order to be revisited after only five months.
The mother’s application contained in her Response to the father’s Application in a Case has little or no merit and should be dismissed.
The orders proposed by the Independent Children’s Lawyer appear to have been crafted with the best interests of the children uppermost, and I propose to adopt them, at least in principle.
What I do intend to do, however, is to discharge the parenting Orders numbered (1), (2) and (3) made on 2 July 2015 and incorporate them into the Orders that I will make today, so that the parties will have one set of Orders that prescribe the parenting arrangements for the children. It will be more convenient and less confusing for the parties to have one set of parenting Orders to which they can refer.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 22 December 2015
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