Reis and Nash - [2014] FCCA 2782

FEDERAL CIRCUIT COURT OF AUSTRALIA

REIS & NASH

[2014] FCCA 2782

Catchwords:
FAMILY LAW – Parenting orders – variation.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60NB, 61DA, 65DAA, 70NBA

MRR v GR [2010] HCA 4
Nash & Reis [2013] FMCAfam 11

Applicant:

MS REIS

Respondent:

MS NASH

File Number:

CAC 236 of 2012

Judgment of:

Judge Altobelli

Hearing date:

13 November 2014

Date of Last Submission:

13 November 2014

Delivered at:

Wollongong

Delivered on:

15 December 2014

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

That in these orders “contact” means spending time with.
That all previous Orders be discharged in relation to the Child X, born (omitted) 2006 (hereafter referred to as “the Child”).
That the parties have equal shared parental responsibility in relation to the Child.
That the Child live with MS REIS (hereafter referred to as “Ms Reis”).
That the Child have contact with MS NASH (hereafter referred to as “Ms Nash”) as follows:
(a)On the third and seventh weekend of each school term which, subject to Orders 9 and 11, is to run from Friday to Sunday;
(b)During the mid year school holidays as follows:
(i)In even years – From 11:00am on the first Saturday of the school holiday period to 4:00pm on the second Monday of the school holiday period; and
(ii)In odd years – From 11:00am on the first Saturday of the school holiday period to 4:00pm on the second Tuesday of the school holiday period;
(c)For one half of the Christmas school holidays being the first part of holidays commencing in even numbered years and the second part of holidays commencing in odd numbered years;
(d)If Easter falls prior to the first term school holidays, Ms Nash’s contact on a weekend may be adjusted if this is necessary, in which case contact would run from Maundy Thursday to Easter Monday;
(e)If it is necessary, Ms Nash’s contact in the first term holidays may be adjusted from the first ten days as provided in Order 5(b) so as to give effect to the Court’s intentions.
In addition to Order 5 above, the Child is to spend time with the party she is not already living with on her birthday as follows:
(a)If the Child’s birthday falls on a school day, the Child is to spend time with the party she is not already living with from after school until 8:00pm; and
(b)If the Child’s birthday falls on a weekend or school holiday, the Child is to spend time with the party she is not already living with from 3:00pm until 8:00pm.
That for the purpose of Order 6 above:
(a)Any such time must take place in the region that the Child is living on the day of her birthday; and
(b)Changeover is to take place at the McDonald’s family restaurant nearest to the home where the Child is living on the day of her birthday, unless the parties otherwise agree to another neutral location.
That each party may communicate with the Child on up to two occasions a week when the Child is with the other party for periods other than weekend contact. This can be by telephone or, if either party requests, by Skype. In the event that a request is made that it be by Skype the other party is to ensure that she has Skype facilities available.
That one of the contact weekends is to be on the Queen’s Birthday long weekend and contact will end on the Monday.
That notwithstanding Order 5(a), in 2014 and each alternate year thereafter the weekend of Mother’s Day is to be one of the contact weekends.
That until the Child commences secondary school, Ms Nash may nominate one weekend in first, third and fourth terms to be a weekend including the Monday. She is to give at least 14 days’ notice.
That in 2015 and each alternate year thereafter, Ms Nash may vary the second contact weekend in Term 4 so that it is the weekend before the commencement of the Christmas holidays.
That either party may vary the contact weekend if there is a significant event involving the Child that would indicate that a variation is appropriate. Unless it is impractical, at least 14 days notice is to be given.
That for the purpose of these Orders and unless otherwise specified:
(a)The words “significant event” in Order 12 is defined to include an event involving the Child, her parents or grandparents that the Child expresses a strong wish to attend.
(b)One half of the Christmas school holidays will be computed by dividing the number of days the Child does not attend school by two. If this is an uneven number of days Ms Nash is to have the additional day.
(c)When contact is in the first part of the Christmas holidays it is to commence on the first day after school breaks up. When it is in the second part of the holidays it is to conclude two clear days before school resumes.
(d)Weekend contact shall commence at 5:30pm and conclude at 4:00pm. Holiday contact is to commence at 11:00am and conclude at 4:00pm.
(e)All changeovers shall occur at side of (omitted), (omitted) near the corner of the (omitted), opposite the (omitted) Shopping Centre petrol station.
That Ms Reis is to notify Ms Nash of the name of any health professional involved with the Child and to authorise such person to provide any information to the applicant as she may request.
That each party is to keep the other advised of any significant medical issues that arise when the Child is in her care.
That Ms Reis is to authorise any school the Child attends to provide to Ms Nash copies of reports, school photographs and any other information requested by her and she is to keep Ms Nash informed of any events at the school which it could be anticipated that Ms Nash might wish to attend.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Child or of the parties, each of the parties shall each do all things necessary to facilitate and attend Family Dispute Resolution with an Organisation recognised under the Family Law Act 1975.
The Contravention Application filed 26 May 2014 be dismissed.

THE COURT NOTES THAT:

A.The parties intend to review these Orders in the Child’s first year of attending High School.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

CAC 236 of 2012

MS REIS

Applicant

And

MS NASH

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about X, born (omitted) 2006. X is nearly eight years old. Her parents were in a same-sex relationship between 1997 and 2012. X is a child of that relationship. The Applicant, Ms Reis, is the biological mother. The Respondent, Ms Nash, is X’s mother pursuant to s.60HB of the Family Law Act 1975 (hereafter referred to as “the Act”). X’s mothers have a dispute about the parenting orders that were made in relation to her. These reasons for judgment explain the orders that the Court has made.

Background

On 26 May 2014, the Applicant filed a Contravention Application in this registry of the Court. By the time the matter was listed for short hearing on 13 November 2014, she relied on three Affidavits sworn 26 May, 28 July, and 27 October 2014. The Respondent relied upon her Affidavits of 28 July, and 29 October 2014.
By way of background, on 15 January 2013, following a two-day hearing on parenting matters, Federal Magistrate Brewster (as he then was) in the Canberra Registry of this Court made the first set of substantive Orders relating to X. His reasons for judgment were published as [2013] FMCAfam 11.
On 24 April 2013, Judge Brewster made Orders in Chambers, presumably by consent, varying the Orders in question.
During the course of the proceedings before me, and following the parents’ attending a Child Dispute Conference, Consent Orders were made on 21 August 2014, further varying the original Orders.
The importance of the reasons for judgment given by His Honour Judge Brewster cannot be overstated. It is possible that the parents have lost sight of the significance of the original litigation before the Court. Further reference will be made to the reasons for judgment in due course.
For present purposes, the Court adopts the matters of background that are set out at paragraphs 2 to 4 of His Honour’s reasons for judgement. No comment is necessary.
The Contravention Application that brought the matter before the Court alleged that Orders 8 and 13 made on 15 January 2013 had been contravened on 11 May 2014 and, further, that Order 5(b) had also been breached on 22 April 2013. What became apparent to the Court, however, after reading the material that had been filed and discussing the matter with both parents in court, is that they were both dissatisfied with aspects of the existing parenting arrangements and preferred to seek clarity about those arrangement rather than to pursue any retributive process such as a Contravention Application. Both parents, particularly the Applicant, are to be commended for this. The Court was satisfied that it had powers under s.70NBA of the Act to vary the existing parenting Orders, in the context of the Contravention Application.
When the matter came before the Court for short hearing on 13 November 2014, it was established that, provided Orders were made dealing with the issues brought before the Court, the Applicant would agree to her Contravention Application otherwise being dismissed. It was also established that neither parent wished to cross-examine the other, that each had submitted Minutes of the Orders they proposed, that each relied on the Affidavits they had filed to date, as well as the Child Dispute Conference Memorandum of 29 July 2014.
The Respondent sought to raise a number of issues that the Court considered beyond the parameters of either the existing parenting Orders or the proposed variations to the same. She sought Orders in relation to international travel, the provision of a passport and being entered onto X’s birth certificate. The Court ruled that it could not adjudicate on these issues because they had been raised late, the Applicant would be prejudiced because she had not provided evidence in relation to the same, and it would have taken the matter beyond the scope of the simplified process that the Court wished to adopt in determining the dispute before the Court.

Applicable law

Section 70NBA of the Act provides:
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
(2) If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a) the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program;
(b) there was no post-separation parenting program that the person who contravened the primary order could attend;
(c) because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court's opinion, for the person to attend a post-separation parenting program, or a part of such a program;
(d) the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(1)     The objects of this Part are to ensure that the best interests of children are met by:
(a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)     parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)     to maintain a connection with that culture; and
(b)     to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)     to develop a positive appreciation of that culture.
At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)     family violence.
(3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)     If:
(a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)     how far apart the parents live from each other; and
(b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)     the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

Existing orders and reasons for judgment

The Orders made by Judge Brewster on 15 January 2013, and then later varied in Chambers on 24 April 2013, are reproduced in the first schedule to these reasons.
The Orders entered into by consent on 21 August 2014 are reproduced in the second schedule.
Judge Brewster made quite detailed Orders in relation to X. The parents were to have equal shared parental responsibility. X was to live with her mother, the Applicant. X was to spend time and communicate with her mother, the Respondent, as set out in the Orders.
His Honour had the considerable advantage that accrues to a judge after a two day hearing involving parents who were represented by capable lawyers and Counsel. His Honour had the opportunity to observe both parents in cross-examination. He made a number of specific findings, to support his Orders.
As it turns out, however, His Honour was wrong about a number of things. For example, at paragraph 29 of these reasons he opined that he did “not think it likely that there will be any further proceedings”. Alas, that has not been the case. His Honour made Orders the successful implementation of which depended on the parents’ ability to agree about certain things. For example, Order 10 made 15 January 2013 provided that “either party may vary the contact weekend if there is a significant event involving the child that would indicate that a variation is appropriate”. The parents have not been able to reach agreement about this, and even the interim agreement reached following the Child Dispute Conference, embodied in Consent Orders of 21 August 2014, are in dispute. At Order 13, it was ordered that changeover “is to be at an agreed location in (omitted)”. Regrettably, the parents were not able to reach agreement on this issue and that was at least one of the precipitators of the current Contravention Application. Indeed, the contravention also raises the issue of the interaction between Orders 9 and 5 of the Orders originally made on 15 January 2013, as Order 9 appears to empower the Respondent in these proceedings to unilaterally vary Order 5. It is possible, for this reason, that the Contravention Application would not have succeeded. Both parents complain about the lack of precision in the Orders made but, of course, the Court does not have the benefit of the Minutes of Orders that they each proposed to His Honour at the hearing.
His Honour made a number of findings that are correct beyond doubt. For example, at paragraph 36 he found that the parents were unable to communicate and cooperate with each other. History has certainly demonstrated that. At paragraph 42 his Honour made findings about one of the issues raised by the Applicant in the present application, about X missing school days for the purposes of spending time with her other mother. His Honour found that he did not regard it as vital that X not miss any days of school, for as long as she was at primary school. That finding informed his Orders that enabled X’s other mother to extend a normal mid-term weekend to Monday afternoon, even if X missed school. His Honour did say in his reasons, however, that this was to cease when X commenced secondary school, a matter noted at Order 9.
Also at paragraph 42 of his reasons, His Honour specifically dealt with the Christmas holiday issue and made findings that it is in X’s best interest to spend a long holiday period with each of her mothers, to enable them to go on an extended holiday.
It is important to record these findings because this Court should not, as a matter of policy, and will not, go behind findings made in relation to X after a full hearing unless there is clear evidence to establish that there has been a change in X’s circumstances or it is otherwise in her best interests to revisit these Orders. The importance of affording appropriate respect to the original Orders made by Judge Brewster is amplified in a situation like the present, where an abbreviated process is being used, albeit with the consent of the parents.
Where necessary, further reference will be made to His Honour’s detailed reasons for judgment.

The issues raised

Both parents were directed to provide to the Court a Minute of the Order that they asked the Court to make. The Applicant Mother’s Minute is reproduced in the third schedule. It is somewhat confusing, in that it purports to vary part of the existing Orders, and also because the submissions made in Court were inconsistent with the Minute itself. Doing the best the Court can, the Applicant Mother seeks to vary the existing Orders as follows:
a)by including a definition of “significant event” for the purposes of existing Order 10;
b)to specifically deal with birthday time, i.e. to define the circumstances in which a parent may spend time with X on her birthday, (omitted), given the proximity to the Christmas holidays;
c)to vary the time when school holidays are to commence;
d)to specify a precise changeover location for the purposes of existing Order 13;
e)to vary the existing arrangement in relation to the December/January school holidays so that X was away from each parent for shorter periods, rather than up to three weeks.
The Minute of Order sought by the Respondent Mother is reproduced in the fourth schedule. Putting aside issues of international travel, passport and birth certificate, which the Court declined to deal with, the issues raised by the Respondent appeared to be as follows:
a)rewording the existing orders for mid-term contact to deal with Mother’s Day;
b)to redefine arrangements for school holiday;
c)to define “significant event” for the purposes of Order 10;
d)to specify the changeover location.
During submissions, the Applicant indicated that she was prepared to accept the Respondent’s proposal in relation to changeover. This would mean that all changeovers will occur at the side of (omitted), (omitted), near the corner of (omitted), opposite the (omitted) Shopping Centre. This is consistent with the Consent Orders made 21 August 2014.

Discussion

The Applicant obviously felt quite strongly about the Christmas holidays and felt that the existing Order, which provided for each parent to have one half of the holidays, and thus alternating Christmases, was not working and was not appropriate. She explained her strong family tradition of celebrating Christmas as well as her concern that being away for three weeks was too long for X. The Respondent seemed content to have the existing arrangement for school holidays to continue.
The Court declines to make any further Orders in relation to school holidays. His Honour Judge Brewster actively gave consideration to this issue before he made the Orders that he did. At paragraph 42 of his reasons he says:
Insofar as the Christmas holidays are concerned, I adopt the respondent’s position that it should be shared equally. It is, in my opinion, in the child’s best interests to spend a long period with the respondent each year to enable them to go on an extended holiday.
It is interesting to note that the Respondent before Judge Brewster is the Applicant before this Court. In the circumstances, the Court is not prepared to consider a change and, indeed, even if it were so prepared to consider a change, there is no evidence to support it.
The Applicant, and to a certain extent the Respondent as well, had concerns about X’s birthday, particularly in view of its proximity to the commencement of the school holidays. The Applicant proposed that, irrespective of where X was living on her birthday, the other parent would be able to spend time with her for a period of five hours, provided the changeover occurred at the residence where X was at the time.
Judge Brewster deals with the issue of X’s birthday at paragraph 46 of his reasons. His Honour recognised that there was at least the possibility that X would have already commenced her Christmas school holiday by her birthday on (omitted). He recognised that “in such an event each party would be with the child on her birthday one year in two”. He indicated, however, that if he were wrong, he would have made Orders for the other parent to spend time with X on her birthday, from after school until 6:00pm.
The Orders made do not deal with X’s birthday, for the reasons that His Honour articulated. It seems to this Court that His Honour at least contemplated the possibility of X spending some time on her birthday with the parent with whom she was not living. The Applicant’s proposal in this regard is not unreasonable and is appropriately child-focussed. Accordingly, an Order will be made that the parent with whom X is not living on her birthday is entitled to spend time with her on her birthday, but it must be in the area in which X is living at the time. Moreover, if it happens to be a school day, the time will commence from after school and conclude at 8:00pm (bearing in mind that it will be Daylight Savings) and if it is not at a school day it is to be from 3:00pm to 8:00pm.
The Applicant proposed, however, that on X’s birthday the changeover be at the home of the parent where she happens to be on the day. The Court is not prepared to countenance a changeover at the home of either parent in circumstances where there is evidence before the Court of previous conflict at changeovers. The changeover is to be at the McDonald’s family restaurant nearest to the home where X is living on the day of her birthday, unless the parents agree to another neutral venue. The Court notes that Order 4 made by consent on 21 August 2014 is consistent with the Court’s ruling above, save for some detail.
The definition of “significant event” for the purposes of Order 10 is, in this Court’s opinion, highly problematic. The parents agreed at the Child Dispute Conference that “significant event” should be defined to include an event involving the child, her parents or grandparents, and that the child expresses a strong wish to attend. This is embodied in the Consent Orders of 21 August 2014. The Applicant proposes a not insignificant extension to this definition. Quite frankly, this Court’s preference would have been to delete Order 10 in its entirety. Successful implementation of the Order depends on two parents who trust each other and can communicate in a way to resolve differences. His Honour Judge Brewster found these parents could not do that. Subsequent history confirms that. Nonetheless, the autonomy of the parents to reach their own agreements should not only be respected, but celebrated. In these circumstances, the Consent Orders of 21 August should prevail.
To the extent that the Applicant was proposing a variation to the commencement and conclusion of time for school holiday contact, there did not appear to be any basis for doing so, either based on problems that have been experienced so far, or on any objective need to do so from X’s perspective.
The Applicant proposes orders in relation to Easter which would ensure that X is with one of her mothers each alternate year. Judge Brewster dealt with this at paragraph 47 of his reasons. He was conscious of the fact that, occasionally, Easter fell outside school holidays but noted that “in most years it falls on the first or second weekend of the holidays”. Nonetheless, he gave the parents leave to invite him to make Orders about Easter. Indeed, the Consent Orders made in chambers on 24 April 2013 appear to be just this. The Order that the Applicant proposed has wording slightly different but seeks to clarify the meaning of “applicant” in the Order of 24 April 2013. In Order 1(b) made 24 April 2013, Judge Brewster referred to the first 10 days, but the Applicant seeks a variation to the first 11 days. In this regard, Order 5(b) made 15 January 2013 specifies 10 days. This Order was itself discharged and varied by consent on 21 August 2014. It is difficult to ascertain the intent of this. Order 5(b)(ii) would provide, in effect, for 11 days during odd-numbered years but 10 days during even-numbered years. On balance, this Court believes it would create more confusion to make the variation proposed.
The major change proposed by the Respondent in the proceedings before the Court seems to focus on the Christmas period, overlapping as it may with X’s birthday. In effect, the Court understood that she sought an additional weekend with X to make up for the fact that, apart from a few hours on X’s birthday as discussed above, she would not see X for several weeks over the Christmas period. The Court declines to make any further change, however, particularly in circumstances where an Order will be made providing for time on X’s birthday. His Honour Judge Brewster actively gave consideration to the question of X spending half the school holidays with each parent. There is no basis for revisiting that.
The Respondent appears to have raised concerns about Mother’s Day. Judge Brewster’s Orders provide at 8 that each alternate year the Respondent’s weekend time would coincide with Mother’s Day, thus, in effect, providing for X to spend time with each of her mothers on alternating years. The practical problem for the Respondent, of course, is the requirement to return X by 4:00pm. The Respondent’s concern is that this reduces the time which she has to celebrate Mother’s Day with X. Again, the Court is satisfied that Judge Brewster actively considered issues pertaining to travel and distance. After all, the substantive application before him started as a relocation application. If the Court were to contemplate a later return on Mother’s Day, it creates yet another variable in these orders, as well as the practical issues of X getting home later in circumstances where she has to go to school the next day.
The Respondent seeks to vary the agreed definition of “significant event” reflected in the Consent Orders of 21 August 2014 by imposing the requirement that there be a make-up weekend for lost time, at the discretion of the parent who has lost out. That is a proposal fraught with difficulty in circumstances where the parents cannot communicate and reach agreement about matters pertaining to X. Having already expressed its concerns about Order 10, the Court declines to add what would only be an unworkable provision for make-up time.
The Respondent sought an Order that, in effect, required a review of these orders once X commences high school, and that mediation be attempted as a precondition to Court action. The idea is sensible. The developmental needs of X, once she starts high school will, experience indicates, be quite different from those she has now. But it is not for the Court to mandate a review as circumstances will compel a review in practical terms. It will be noted in the Orders. For one thing, as X gets older, she might want to have a much greater say on how she spends her school holiday time. As for the request to attend mediation as a precondition to litigation, there is much common sense in this, and the evidence that the Respondent adduces does indicate some reluctance on the part of the Applicant to participate in mediation. The issues that were before the Court, even for two parents who cannot communicate, readily lend themselves to a consensual dispute resolution. An appropriate Order about resolving disputes in relation to X will be made.
The Court recognises that the Respondent did have some concerns about the proposal for each parent to spend time with X on her birthday. Those concerns appeared to relate to particular plans she might have for this year, which, according to her, will be the first time that she has spent both X’s birthday and Christmas with her. Whilst the Court recognises the Respondent’s concerns, and the enthusiasm with which she would be looking forward to X’s time with her over Christmas, the Order is considered to be in X’s best interests and, in any event, in 2015, it will be the Respondent who derives the benefit of it.
The Applicant’s evidence suggests that there has been either a disagreement or misunderstanding about precisely when school holidays commence. In Order 12 made 15 January 2013, His Honour specified that the Christmas school holidays are to commence on the first day after school breaks up. Order 5(b) otherwise satisfactorily deals with this issue.

Conclusion

At paragraph 52 of his reasons for judgment, His Honour Judge Brewster said as follows:
In my view, the Court should be minimalist in the orders it makes in relation to parents. It is not the task of the Court, nor in my opinion is it appropriate, to make orders which, in effect, micromanage how parents bring up their children.
This Court completely agrees with the second proposition advanced by His Honour, that is, that Courts should not be micromanaging how parents parent. As this case demonstrates, however, there are a small number of cases where minimalist parenting Orders in fact are conducive to future disputes between the parents. This is one of those cases. Prescriptive Orders are called for. The difficulty is, at least in this Court’s experience, that some parents have a remarkable capacity to find, or create, ambiguities and uncertainties in even the most prescriptive of Orders. One can only hope that that is not so in the present case.
Once the Court makes the orders, pursuant to s.70NBA, varying the existing Orders, there will, in effect, be four separate Orders that cover the parenting arrangements for X: 15 January 2013, 24 April 2013, 21 August 2014 and the present Orders. In the circumstances, it is in X’s best interests that the Orders be consolidated into one document, and that is what the Orders made in this case attempt to achieve.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 15 December 2014

Schedule One

FAMILY LAW ACT 1975

IN THE FEDERAL MAGISTRATES

COURT OF AUSTRALIA FILE NO: (P)CAC236/2012

BETWEEN:
MS NASH (Applicant)

AND:
MS REIS (Respondent)

BEFORE: FEDERAL MAGISTRATE BREWSTER

DATE: 15 January 2013

MADE AT: CANBERRA

UPON APPLICATION MADE TO THE COURT.

THE COURT ORDERS:

That in these orders “contact” means spending time with.
That as and from the commencement of first term 2013 all previous orders in relation to the child X, born (omitted) 2006 be discharged and these orders commence operation.
That the parties have equal shared parental responsibility in relation to the child.
That the child live with the respondent X.
That the child have contact with the applicant Ms Nash as follows:
(a)On the third and seventh weekend of each school term which, subject to Orders 7 and 9, is to run from Friday to Sunday;
(b)For the first ten days in the mid year school holidays;
(c)For one half of the Christmas school holidays being the first part of holidays commencing in even numbered years and the second part of holidays commencing in odd numbered years.
That each party may communicate with the child on up to two occasions a week when the child is with the other party for periods other than weekend contact. This can be by telephone or, if either party requests, by Skype. In the event that a request is made that it be by Skype the other party is to ensure that she has Skype facilities available.
That one of the contact weekends is to be on the Queen’s Birthday long weekend and contact will end on the Monday.
That notwithstanding Order 5(a) in 2014 and each alternate year thereafter the weekend of Mother’s Day is to be one of the contact weekends.
That until the child commences secondary school the applicant may nominate one weekend in first, third and fourth terms to be a weekend including the Monday. She is to give at least 14 days notice.
That either party may vary the contact weekend if there is a significant event involving the child that would indicate that a variation is appropriate. Unless it is impractical at least 14 days notice is to be given.

That one half of the Christmas school holidays will be computed by dividing the number of days the child does not attend school by two. If this is an uneven number of days the applicant is to have the additional day.
That when contact is in the first part of the Christmas holidays it is to commence on the first day after school breaks up. When it is in the second part of the holidays it is to conclude two clear days before school resumes.
That weekend contact shall commence at 5.30pm and conclude at 4.00pm. Holiday contact is to commence at 11am and conclude at 4pm. The changeover is to be at an agreed location in (omitted).
That the respondent is to notify the applicant of the name of any health professional involved with the child and to authorise such person to provide any information to the applicant as she may request.
That each party is to keep the other advised of any significant medical issues that arise when the child is in her care.
That the respondent is to authorise any school the child attends to provide to the applicant copies of reports, school photographs and any other information requested by her and she is to keep the applicant informed of any events at the school which it could be anticipated that the applicant might wish to attend.

FAMILY LAW ACT 1975

IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA

FILE NO: (P)CAC236/2012

BETWEEN:
MS NASH (Applicant)

AND:
MS REIS (Respondent)

BEFORE: JUDGE BREWSTER

DATE: 24 April 2013

MADE AT: CANBERRA

UPON APPLICATION MADE TO THE COURT IN CHAMBERS.

THE COURT ORDERS:

THAT notwithstanding order 5(a) and (b) of the orders made 15 January 2013 the time the child X, born (omitted) 2006 has contact with the applicant Ms Nash is to be adjusted such that the child is with one party at Easter each alternate year and with the other each alternate year. To this end:

(a)If Easter falls prior to the first term school holidays the applicant’s contact on a weekend may be adjusted if this is necessary in which case contact would run from Maundy Thursday to Easter Monday;
(b)If it is necessary the applicant’s contact in the first term holidays may be adjusted from the first 10 days as provided in order 5(b) so as to give effect to the court’s intentions.

Schedule Two

Consent Orders of 24 August 2014

1. That 5(b) of the orders of 15 January 2013 be discharged and replaced with:
5(b) During the mid year school holidays as follows:
i.In even years – From 11:00am on the first Saturday of the school holiday period to 4:00pm on the second Monday of the school holiday period
ii.In odd years – From 11:00am on the first Saturday of the school holiday period to 4:00pm on the second Tuesday of the school holiday period

2. That for the purpose of Order 10 of 15 January 2013 a significant event is defined to include an event involving the child, her parents or grandparents that the child expresses a strong wish to attend.

That notwithstanding Order 13 of 15 January 2013, all changeovers shall occur at the side of (omitted), (omitted) near the corner of the (omitted), opposite the (omitted) Shopping Centre.

That the following orders be added to the orders of 15 January 2013:

4. That commencing in 2015, the parent who does not have the care of the child on the child’s birthday ((omitted)) is at liberty to spend time with the child from 3:00pm to 8:00pm on the basis that changeover occurs at the residence of where the child is residing at the time and the other parent’s time shall suspend accordingly.

That in 2015 and each alternate year thereafter the respondent may vary the second contact weekend in Term 4 so that it is the weekend before the commencement of the Christmas holidays.

6. That the parties review these orders in the child’s first year of attending High School.

Schedule Three

Minute of Order proposed by the Applicant and handed up in Court

That each party may communicate with the child on up to two occasions a week when the child is with the other party for periods other than weekend contact. This can be by telephone or, if either party requests, by Skype. In the event that a request is made that it be by Skype the other party is to ensure that she has Skype facilities available.

7.   That one of the contact weekends is to be on the Queen’s birthday long weekend and contact will end on the Monday.
8.   That notwithstanding Order 5(a) in 2014 and each alternate year thereafter the weekend of Mother’s Day is to be one of the contact weekends.
9.   That until the child commences secondary school Ms Nash may nominate one weekend in first, third and fourth terms to be a weekend including the Monday. She is to give at least 14 days notice.
10. That either party may vary the contact weekend if there is a significant event involving the child that would indicate that a variation is appropriate. Unless it is impractical at least 14 days notice is to be given. A significant event is defined to include any of the following:

An event that the child expresses a strong wish to attend
A parent’s birthday or the christening, engagement or wedding celebration of a member of the child’s immediate or extended family
An event associate with a group or team that the child may be involved in from time to time including curricular and extra curricular activities

11. That commencing in 2014, the parent who does not have the care of the child on the child’s birthday ((omitted)) is at liberty to spend time with the child for a period of 5 hours as agreed between the parties. Failing agreement, from 3:00pm to 8:00pm on the basis that changeover occurs at the residence of where the child is residing at the time and the other parent’s time shall suspend accordingly.
12. That weekend contact shall commence at 5:30pm and conclude at 4:00pm. School holiday contact is to commence and conclude as outlined in order 5. The changeover is to be at the side of (omitted), (omitted) near the corner of the (omitted), opposite the (omitted) Shopping Centre .
13. That notwithstanding 5(a) and (b), the contact is to be adjusted such that the child is with one party at Easter each alternate year and with the other each alternate year. To this end

If Easter falls prior to the first term school holidays Ms Nash’s contact on a weekend may be adjusted if this is necessary in which case contact would run from Maundy Thursday to Easter Monday;
If it is necessary Ms Nash’s contact in the first term holidays may be adjusted from the first 10/11 days as provided in order 5(b) so as to give effect to the court’s intentions.

Schedule Four

Minute of Order proposed by the Respondent

That 5(a)(b)(c) of the order of 15 January 2013 be discharged and replaced with:
5(a) that during the school year, the third and seventh weekend of each term shall be a contacted weekend.
I.Contact weekends shall consist of one 2 day weekend from 5:30pm Friday to 4pm Sunday and one 3 day weekend from 5:30pm Friday to 4pm Monday.
II.In odd numbered years, Mother’s Day weekend is to be a contact weekend.
5(b) during the mid year school holidays as follows:
I.In even years – from 11am on the first Saturday of the school holiday period to 4:00pm on the second Monday of the school holiday period
II.In odd years – from 11am on the first Saturday of the school period to 4:00pm on the second Tuesday of the school holiday period.
5(c) for one half of the Christmas school Holidays being the first part of holidays commencing in even numbered years and the second part of holidays commencing in odd numbered years.
That for the purpose of Order 10 of 15 January 2013, a significant even is defined to include an event involving the child, that the child expresses a strong wish to attend including school events and sports carnivals. The make-up weekend for time lost it at the discretion of the respondent.
That not withstanding Order 13 of 15 January 2013, all changeovers shall occur at the side of (omitted), (omitted) near the corner of the (omitted), opposite the (omitted) Shopping Centre.

That the following orders be added to the orders of 15 January 2013.

In odd numbered years, the child spend an addition (3) day weekend before school adjourns for Christmas with the respondent
I.And it is Noted That: the reason for this order is for the child and the respondent to celebrate the child’s birthday ((omitted)) and Christmas.
That the child, X, has the right to travel internationally.
I.Upon request, the child’s passport is to be relinquished to the respondent.
That the respondent’s name, Ms Nash, be placed on the birth certificate.
That the parties review the Orders in the child’s first year of High School.

Mediation must be attempted, if necessary, before Court action is sought.