Seaford and Seaford (No. 2)

[2007] FamCA 1713

FAMILY COURT OF AUSTRALIA

SEAFORD & SEAFORD (NO. 2) [2007] FamCA 1713

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Contravention

Family Law Act 1975 (Cth)

APPLICANT: Mr Seaford

RESPONDENT: Ms Seaford

FILE NUMBER: DGF 2640 of 1999

DATE DELIVERED: 24 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 24 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Kuan

SOLICITOR FOR THE RESPONDENT: Le Souef Preston & Associates

Orders

IT IS ORDERED THAT

1. The husband’s application on Form 18 filed 5 January 2007 be dismissed.

2. Any parenting order presently in force between the parties related to the child … born … September 2006 be varied only in writing signed by both of the parties.

3. The proceedings be removed from the list of cases awaiting hearing.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT DANDENONG

FILE NUMBER: DGF 2640 of 1999

MR SEAFORD

Applicant

And

MS SEAFORD  

Respondent

REASONS FOR JUDGMENT

1. The parties have a child who is aged 10 years.  They have been before the court on at least several occasions, most importantly on 16 December 2005 on which date they consented to orders, one of which provides for the husband to have contact with the child -

   for one-half of the school term holidays, and failing agreement the first half on the condition the husband has leave from his employment.  In default of the husband not having leave, the usual weekend and weekday contact continue throughout the first half of the holidays and be suspended in all other school holidays, including the long summer vacation.

2. It is common ground that that paragraph applies to this particular dispute.

3. The husband has brought an application on form 18, alleging contravention by wife of that order over the recently concluded December-January period.  The relevant facts are that the school term or school year finished on 20 December 2006.

4. There is some small dispute as to exactly when the husband should have picked the child up.  It seems as though it should have been 21 December 2006, but in fact he collected him on the 22nd.

5. There appears previously to have been an arrangement for the parties to alternate Christmas and New Year, and I note in particular that paragraphs (2)(a) and (b) of the order provide for Christmas and Boxing Day contact and then a period which would encompass the New Year, but that only applied to Christmas 2005 and January 2006 and is not continuing.

6. There is a dispute on the facts as to precisely what the arrangement between the parties was.  The wife asserts that what she refers to as the contact, but by which she means the order, provided for alternating weeks during the school holiday period.  She is wrong in that, and her Counsel concedes that point.

7. The husband says that he offered her a period of about 24 hours on New Year's Eve and New Year's Day, but she interpreted this as being a return for a week.  The husband dropped the child off to the wife at their changeover point on New Year's Eve, expecting to have him back on New Year's Day, but the wife did not return him until 7 January 2007.  The husband then had the period from 7 January 2007 to 22 January 2007, all in all making I think 24 days.

8. I note the provision in the order that the contact is subject to the husband having leave from his employment.  Counsel for the wife submitted that the husband had a positive duty to inform the wife of his having leave.  I do not accept that submission.  As long as the husband had leave, he is entitled to the contact.

9. I am satisfied that the husband went back to work on 18 January 2007, which would have resulted in, if he had had the child right through without the intervening week at the beginning of January, that the child would have been with him throughout the leave period.  As well as that, as a result of the child being with the wife for the week at the beginning of January, the husband was unable to go on a camping trip with other people and in fact did not go on such a trip.

10. In my view both parties are to blame here.  It is quite clear that on the face of the order the child should have been with the husband without that break.  He varied it, and they both have different views as to what that variation was.

11. I find myself unable to determine that question, by virtue of what appears to be an extremely hostile relationship between the parties, which I think is really at the heart of this dispute.

12. Ultimately, while the husband was entitled to 21 days, he in fact had 24 days.  He did go back to work for two of those days towards the end, that is 18 and 19 January, but in my view he has had sufficient make-up time.

13. I recognise that he was unable to go camping but in the circumstances, and particularly given my difficulties with the credit of both parties, I am unable to determine that factual dispute.  On the one hand in my view the case has been made out as to a breach, but on the other I am not satisfied that that is without reasonable excuse.

14. Further, given the contact that in fact took place, albeit with a break of a week, the application in my opinion becomes de minimis and in the circumstances I think it should be dismissed.

15. I suggested to the husband that the order should be varied to provide that any variation agreed to by the parties be in writing, signed by both parties, which hopefully will overcome some of the difficulties.  I propose ordering accordingly.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  28 October 2008