SOUTH & CORDAS

[2011] FamCA 129

FAMILY COURT OF AUSTRALIA

SOUTH & CORDAS [2011] FamCA 129

FAMILY LAW – CHILDREN - Variation of children’s orders – Time spent and holidays

APPLICANT: Mr South

RESPONDENT: Ms Cordas

FILE NUMBER: MLC 4866 of 2009

DATE DELIVERED: 24 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 24 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms McCreadie

SOLICITOR FOR THE RESPONDENT: Greg Thomas

ORDERS

IT IS ORDERED:

1. THAT the final consent orders pronounced 1 July 2010 (“the consent orders”) remain in full force and effect save that they be amended to provide in this calendar year only for the husband to spend time with his daughter R born …November 2004 from after school on Monday 19 December 2011 until 3.00 p.m. on 25 December 2011 (inclusive).

2. THAT the following notations be added to the Court Order:

   (a)that for the purposes of paragraph 5 the last pupil day of term shall be advised by the child’s school from time to time;  and

   (b)that for the purposes of calculating the resumption of the fortnightly regime pursuant to paragraph 6 of the Court Orders the husband’s fortnightly time shall be taken to have notionally continued during school holidays.

3. THAT the application in a case filed 16 December 2010 be otherwise dismissed.

4. THAT the further orders sought by the husband in his affidavit filed 17 February 2011 be otherwise dismissed.

5. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

6. THAT within thirty (30) days the husband pay or cause to be paid to the solicitors for the wife the sum of $1,000 as costs fixed of and incidental to this hearing.

7. THAT the extempore reasons for judgment be transcribed, placed upon the Court file and be made available to the parties.

IT IS NOTED

A.THAT the Court has considered imposing a restriction on both parties from filing further applications in this Court but, on present material, has refrained from making that order on this occasion.

B.THAT there is no level of complexity or legal content remaining in this matter and it may be that, on any future occasion, if issues arise it should be heard and dealt with in the Federal Magistrates Court.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4866 of 2009

Mr South

Applicant

And

Ms Cordas

Respondent

REASONS FOR JUDGMENT

1. The matter of South & Cordas has been listed before the Court upon the application of the father.  That application in a case was filed 16 December 2010 and sought the enforcement of existing orders and the recovery of the child.  The child in this case is R, (“the child”) born in November 2004.  In support of that application the father appeared and filed a handwritten affidavit of some length and history, and various annexures thereto.  That application did not satisfy any requirements of the Court for the abridgment of time and it was not listed until this day, 25 February, notwithstanding the purported nature of the urgency of the recovery order sought.

2. Subsequently the father filed a further affidavit on 17 February 2011 and in that document purported to seek further orders.  Those orders related to time that he would propose to spend with his daughter in the first term April holidays of this year and then for the long term Christmas holidays of December of this year and January of next year.  Those orders were included within the affidavit and not on any application in a case.  Nevertheless I have read that affidavit and the issues raised therein and I will deal with them by orders that I propose to make today.

3. A further affidavit was filed by the father on 22 February 2011 and that largely is a response document highlighting the past conflictual matters in this case and endeavouring to persuade the court of the various extended orders that he now seeks. 

4. For the mother’s part, the response was filed 21 February 2011 where she seeks the dismissal of the proceedings brought by the father and otherwise two variations by way of notations to the court order.  The first of those notations is:

   “For the purposes of paragraph 5, the last pupil day of term be advised by the school from time to time”.

   That seemingly is agreed by all parties.  It does not change the orders, but perhaps it’s an explanation which is largely historical given the issues that arose in December of last year.  I will add that notation to the order.

5. The further notation now sought is:

   “That for the purpose of calculating the resumption of the fortnight regime pursuant to paragraph 6, the husband’s fortnightly time shall be taken to have notionally continued during school holidays”.

6. That notation is opposed.  In reality, what it endeavours to do is to structure the year as a whole and so as to bring some certainty to planning.  What is very evident in this case is the total inability of the parents to talk to each other and, more particularly, to have meaningful discussions for the better interests of their daughter in planning their time and their activities with her.  Both parties had available calendars and it is clear that the programming of the child’s activities and time spent is a carefully orchestrated arrangement.  It is on a yearly basis.  I will endeavour to bring some certainty and I accept the benefit of that notation as proposed by the child’s mother.

7. It may bring about an odd arrangement from time to time, but on the balance of a year and, more particularly, over the balance of the years that the child will remain in primary school, those unusual circumstances should balance out so that over any given period, it will mean that in one year a parent may have two successive occasions of time spent, but that should work to the advantage of the other parent in other periods.  In any event, I am not taking a strictly mathematical approach and I am simply trying to balance the time on that scenario and the regime upon which time is calculated given the mathematical approach that these parents want to take.

8. The more substantial issue in this case is that on 1 July 2010 there were final orders pronounced.  At the time an Independent Children’s Lawyer was engaged for the parties and appeared at Court.  That appointment has now been discharged and will not be recommenced.  Both the parents then had Counsel.  Each of them are intelligent individuals who are capable of knowing the orders, what they signed and what they agreed to.  I certainly commence any assessment of this matter on the basis that the parents are each careful, perhaps pedantic, and knew before those orders were executed minutely the facts, matters and details of and related thereto.

9. There are two issues that are in dispute in relation to the child on an ongoing basis;  where she lives with the wife and spends time and communicates with the husband pursuant to those consent orders.  True it is that there is somewhat of a conflict between the orders for last year in that what was provided for in paragraph 9(a) as to Christmas Day does not sit comfortably with what otherwise was provided for in paragraph 4(d)(iv) thereof.  That conflict is not of importance because paragraph 9 deals with matters that have now occurred and are in the past and there is no provision in that order that affects future dates from this hearing.

10. It is therefore unnecessary for me to discharge paragraph 9.  Paragraph 4(d)(iv) provides that in 2010 and each alternate year thereafter the child would spend time and communicate with her father from 3.00 p.m. Christmas Eve until 3.00 p.m. Christmas Day.  That should have occurred last year, but for reasons which I cannot contemplate nor understand, that did not occur.  Whether the father elected to surrender or any other reason, I do not know, but the father asserts the mother has had the last three Christmas mornings with the child awakening in her home.  The mother can’t remember. 

11. What I intend to do is to try and deal with this coming year, December and January of 2011/2012 and not deal beyond that period.  This case is more complicated because of the further arrangements with the new family in which the wife now lives and the two children of that extended family who are aged five and seven.  The wife is also pregnant and due to give birth in April of this year to her new child.  All of those matters reflect upon the difficulty in arrangements.  What overwhelmingly is clear in this case is that each of the parents are concentrated upon their own self interest. 

12. They are each somewhat insular and have little scope of the bigger picture.  They perhaps are lacking in some level of advice and/or common sense, but I do not want to say any matters that further inflame that scenario.  I have little confidence in the future discussion but this matter must stop coming back to court.  The reality of the father not having the daughter on the break up of school and his understanding and action in immediately filing a recovery and enforcement action speaks little for any cooperation or mutual discussion. 

13. I simply do not accept there was any need for a recovery action.  There was not the slightest suggestion that there was any removal of the child or flight risk or any action that would necessitate a recovery order, and that should have been bluntly and firmly told to the father if he was able to be receptive of those matters, which I doubt.  What I intend to do for the upcoming Christmas period is to have the current orders read subject to the fact that in this year, 2011 only, the child will be with the father from after school on 19 December until 3.00 p.m. on Christmas Day. 

14. That ensures that she will be with the father for this Christmas morning.  It is a stand alone – one only year order and the parties can thereafter sort out future Christmas Days.  As to the orders sought in respect of April this year and the variations by the father, I am not going to make those orders.  Indeed they really, in many ways, are failing to understand the wider scenario of agreed consent orders and/or the mother’s pregnancy. I am satisfied that the husband has parents who are extremely loving of the child and will be there and can spend time with the child and should spend time with the child, and that is the scenario if the father elects to take a sports school trip to Sydney, then his parents can spend time.  That may or may not be compulsory. 

15. I am not going to have evidence on that issue.  I am accepting that the father’s trip overseas with the school children is likely to be part of the school agenda and that which that school offers to students.  If that is to be part of the husband’s agenda, that is more understandable than a sports trip interstate.  That is not to say the father should not go and should not have responsibilities to his pupils, but that can be read in the context that his parents are available, the orders were structured, he agreed to the orders, he knew what he was agreeing to and I am not changing orders in respect to those first term matters. 

16. I will have those reasons transcribed and placed upon the court file.  I emphasise that my approach has been the best interests of the child.  Those orders are made on the understanding that these final orders were made by consent in July of last year only.  I am absolutely confident they were made with much debate, much input from the parents and much understanding.  Counsel were present and I am not in any way otherwise likely to divert from those orders because of the ongoing wishes of one or other party.  This matter should not be back in court.  I understand the breakdown of common sense and parental goodwill, but that has to be resurrected. 

17. It might be one party is more inclined than the other to want to approach court, but I intend by these reasons to make it abundantly clear to any other Judicial Officer or Registrar or Federal Magistrate where this matter should be sent, that this matter has had more than sufficient court time and these matters now should be for some level of common sense between parents.  I otherwise limit my comments on any individual basis as between parents, but I am certainly not supportive of the way in which the father brought this matter to court on 16 December of last year.  It was overzealous and over enthusiastic and not justified by any of the facts of the case. 

I certify that the preceding seventeen
(17) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 24 February 2011

Associate: ……………………………………………………………

Date:  …………………………………………………………………