SILMON & HOLSOMBACK

[2020] FCCA 3234

FEDERAL CIRCUIT COURT OF AUSTRALIA

SILMON & HOLSOMBACK [2020] FCCA 3234

Catchwords:
FAMILY LAW – Parenting – Rice & Asplund hearing – concerning two children aged nine and seven – where existing final orders provide the children live the mother and spend time with the father in Darwin – where the father has now relocated to South Australia – where the existing orders contemplate the father’s residence in Darwin not South Australia – satisfied there has been a significant change in circumstances since the existing orders were made – Rice & Asplund rule is satisfied. 

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice & Asplund [1978] FamCA 84; (1978) 6 FamLR 570

Applicant: MS SALMON

Respondent: MR HOLSOMBACK

File Number: DNC 117 of 2018

Judgment of: Judge Young

Hearing date: 4 November 2020

Date of Last Submission: 4 November 2020

Delivered at: Darwin

Delivered on: 4 November 2020

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

The Respondent: On his own behalf

ORDERS

THE COURT ORDERS THAT:

1. The proceedings are adjourned to 10 December 2020 at 2:15pm for defended hearing in relation to the children’s time with the father with half a day allowed.

2. The respondent is to file and serve an amended response within 14 days.

3. Both parties are to file and serve an affidavit in support no later than the close of business on 27 November 2020 and an outline of case no later than two days before the hearing.

THE COURT NOTES:

A.The court is satisfied the test outlined in Rice & Asplund [1978] FamCA 84; (1978) 6 FamLR 570 is satisfied.

B.The mother says that she has no objection to the children X born 2011 and Y born 2013 (“the children”) travelling to South Australia for a period of three weeks in the second half of the Christmas holidays 2020/21, with the children to travel unaccompanied on Qantas Airways.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 117 of 2018

MS SALMON

Applicant

And

MR HOLSOMBACK

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application to reopen parenting orders that were made by consent on 5 November 2018 concerning two children, X, aged nine, and Y who is seven.  At the time the orders were made, Mr Holsomback, the father was resident in Darwin, though it is clear enough that he was spending extended time travelling to South Australia, in particular, if I recall the evidence correctly, his parents, or his mother, were in poor health and he was travelling considerably.

3. The notations in the consent orders have a particular notation at “D” which reads as follows:

   The father intends in the near future to travel to South Australia for extended time with the paternal family and will notify the mother of his intended travel dates upon booking and upon the father’s return to Darwin his time spent will recommence pursuant to orders 19 and 20 herein. 

4. The father has filed an affidavit where he says that he has now permanently relocated to South Australia.  Accordingly, the orders that were in place, particularly for regular term time for the children to spend with him, as they live with the mother, are no longer applicable.  Be that as it may, that is not the issue. 

5. The issue is that under those orders, which were made in contemplation of the father continuing to reside in Darwin, the children were to spend half of each school term holiday with him, which on the orders contemplated some four times a year.  In the long holidays, the Christmas holidays, the children were to spend time with the father for three weeks broken into two blocks, presumably having regard to the fact that the children at that stage, particularly Y some two years ago, would have been barely five.  Y is of course now almost seven, he turns seven in about 10 days, so there is now a slightly different circumstance. 

6. The father says that he will have trouble complying with those orders, which would appear to involve at least three return trips a year plus, if the Christmas holiday is to be broken up into two blocks, another two trips. 

7. That would be five return trips a year from Darwin to Adelaide and the father says he cannot afford that.  There is no evidence from him about his income at the moment, but, regardless of that, I consider that a regime of five trips a year, including two trips in the Christmas holidays, is unreasonable. 

8. Whether or not, as the father proposes, there ought to be two trips a year or something more, I do not know, but his proposal is two trips a year.  He says that is all he can afford.  The mother’s position is that there ought to be simply no change in the orders.  It was submitted to me that notation “D” deals with the issue.  I specifically reject that submission. 

9. I am satisfied notation “D” contemplates the father’s continued residence in Darwin, not permanent residence in South Australia.  I am satisfied that the requirements for Rice & Asplund (1978) 6 FamLR 570 in relation to a likely variation in the school holiday arrangements is, to use the language of the case law, “on the cards”, and, accordingly, I propose to permit the parties to revisit that issue.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 26 November 2020