Thornton and Thornton

[2008] FamCA 660

FAMILY COURT OF AUSTRALIA

THORNTON & THORNTON [2008] FamCA 660

FAMILY LAW – ORDERS – Variation
FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: MR THORNTON

RESPONDENT: MS THORNTON

FILE NUMBER: MLC 991 of 2007

DATE DELIVERED: 27 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

Orders

1. That pursuant to s 11F of the Family Law Act1975 (Cth), the parties forthwith attend upon a family consultant for the purposes of endeavouring to resolve the dispute between themselves as to the time that the husband is to spend with the four children of the marriage.

2. That until further order paragraph 4(c) of the orders made on 13 February 2008 be varied so that the husband’s time with the children commences on Friday 4 July 2008.

3. That until further order save for the period referred to in paragraph 1, all time to be spent by the husband with the children under paragraph 4(c) shall be suspended during school holiday periods and shall resume after the children resume school as if it had not been suspended.

4. Paragraph 4(a) of the orders made on 13 February 2008 is discharged.

5. All proceedings of an interim nature are otherwise dismissed.

6. The contravention application and the application initiating proceedings filed by the husband on 23 June 2008 and the response of the wife filed on 27 June 2008 are transferred to the Federal Magistrates Court of Australia.

7. That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. That the transcript of the proceedings this day be obtained and placed on the file and provided to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 991 of 2007

MR THORNTON

Applicant

And

MS THORNTON

Respondent

REASONS FOR JUDGMENT

1. This is a busy Friday duty list in which I have two applications by Mr Thornton.  The first is an application seeking that Ms Thornton be dealt with for contravention of orders and the other is not clearly worded but after discussion with the parties I have originally taken it as a recovery order application in relation to some forthcoming holiday periods but otherwise it is really an application to give a direction just as to what the extant orders really mean.

2. The unusual feature of this case also is that the parties litigated in the Federal Magistrates Court culminating in final orders being made by consent and presumably with the assistance of an independent children's lawyer.  Those orders were finalised on 13 February 2008.  For reasons that I do not understand the application has been brought in this court.  It is much more appropriately dealt with in the Federal Magistrates Court and after making some interim orders today I propose to return it so that the parties can have their day depending on what they want to do.

3. This case involves four children, B who was born in September 1998 so she is not far off 10 years of age.  C was born in May 2000 so she has just turned eight.  D was born in January 2002, so she is now six and a half and E was born in September 2003 so she is not far off five.  There is no question that the children live with their mother.  The bizarre situation which sadly has become far more common, is that the parties consented to orders:

   that the husband and wife have equal shared parental responsibility for the children's care, welfare and development. 

4. Notwithstanding the legal implications of that order, nothing could be further from the truth or the reality.  The father and the mother do not converse with one another.  The best that could be said is that the father sends a communication book and he told me he endeavoured to communicate through the children’s grandmother.  All of that is a rather poor substitute for the parties endeavouring to resolve their problem about how they raise their children having regard to the legal obligations upon them which ironically enough, they consented to on 13 February 2008.

5. There is little I can do about that today. I gave the parties an opportunity pursuant to s 11F of the Family Law Act1975 (Cth) (“the Act”) to mediate the dispute with a family consultant. The family consultant obviously did what she could and has reported to the court that there is no agreement between the parties. Having regard to the fact that the dispute is ongoing and will take some time to sort out before the Federal Magistrates Court can seriously look at it, I propose to make some orders today to rectify the problems.

6. I will make very clear to the parties and to any person who reads these reasons, that this is not negotiable and these are the terms under which both parties are to have an involvement with their children in the foreseeable future.  I say that because one of the problems in this case is that because of the parties respective of the interpretations of the orders made in February, the father has made the appropriate applications to his employer for the time off.  The employer has no doubt organised the roster around those arrangements where possible.

7. I am sorry if this in fact creates problems for the employer, but my view is that what was intended by the orders needs to be made clear and the times should be so finite and clear that there can be no argument from anybody's perspective.  I shall firstly put the position of the two parties.  The father says that he filed the contravention application because his former wife was not complying with the orders.  To some extent the mother agrees that she did not comply with at least part of the order because as a result of some family tragedies last week she overlooked the situation and that may very well be a defence to the contravention application and if the father proceeds with that application he may do so at his peril.  But that is a matter for the Federal Magistrates Court to work out.  I do not have time to deal with it fully today hearing evidence and allowing the parties to cross‑examine one another.

8. The second part of the father’s application is the one that I have already referred to.  Effectively what he says is that he is concerned that his former wife will not comply with the orders and provide him with the children bearing in mind that today is the start of the school holidays.  For that reason I propose to make orders varying the February orders so that there is no argument about exactly what each party should be doing. 

9. The orders that were made on 13 February 2008 say that the children are to spend time with the husband as follows:

   (a)from 9 am to 5 pm on each Sunday commencing 17 February 2008;

   (b)from 9 am Saturday to 5 pm Sunday each alternate weekend commencing 22 March 2008;

   (c)from 5 pm Friday to 5 pm Sunday each alternate week commencing 20 June 2008, and every alternate week thereafter;

   (i)during the school holidays from 5 pm Wednesday 9 July 2008 to 5 pm Sunday 13 July 2008;

   (ii)from 5 pm Monday 29 September 2008 to 5 pm Sunday 5 October 2008,

   (iii)from 5 pm Sunday 18 January 2009 to 5 pm Sunday 25 January 2009;

   (iv)for the first half of all school term holidays commencing in 2009 and every alternate year thereafter or as otherwise agreed upon by the parties;

   (v)or the second half of all school term holidays commencing in 2010 and every alternate year thereafter or as otherwise agreed upon by the parties,

   (vi)one week of the long summer school holiday period commencing 2009-2010 at times to be agreed upon by the parties and failing agreement the last week of the holiday period.

10. The orders then provide for Christmas Day and its surrounding period, and go on to refer to Mother's Day and Father's Day.  Those issues are really not relevant for the purposes of these interim orders.  The mother’s position is that the current order really is paragraph 4(c) which says that the father should be seeing the children from 5 pm Friday to 5 pm Sunday each alternate week.  That should have commenced last weekend and as I have mentioned that did not occur.  Accordingly if that was to be the starting date, then the next weekend would be the weekend of 4 July.

11. She says however, that that should not be the next date because of the fact that it is during the school holiday period.  During the school holiday period paragraph 4(d) applies.  The father argues completely the opposite.  He says that 4(a) applies every week regardless of not only the alternate weekends but also the school holidays.  In other words every Sunday until further order or the children turning 18 years of age he is to spend from 9 to 5 with them.

12. He says that the 4(c) paragraph means that he has Friday through to Sunday of every alternate week.  His argument was also that in respect of the school holiday periods, notwithstanding they are quite precise as I have described them, the Sundays and also the alternate weekends continue.  Before I leave paragraph 4 generally, there was an early morning debate between the parties and particularly something that troubled me when the mother said to me that she thought the orders actually commenced on a rotating basis and therefore the reference in paragraph 4(c) to the alternate weekends commencing on 20 June did not apply because the father had had the children the week before. 

13. It was a fluke of the calendar I suppose that the 4(b) order ran into 4(c).  This problem is highlighted by the drafting of these orders.  People who draft them do not consider things that are oftentimes accepted as logical, and this is a clear case where one party is looking at the wording of the orders literally, albeit that there is some absurdity in my view about that, and the other party is saying, "Well, even though the literal meaning can say a particular thing, you don't take a lot of notice of that."  To that extent both parties seem to me to be burying their heads in the sand. 

14. The Full Court in Langford v Coleman (1993) FLC 92-346 made it abundantly clear that when interpreting an order it is not the function of a court to go behind the orders. The orders should be read literally and they should mean what they say. The obvious exception to that rule is where the orders in the mind of the judge do not make sense. In my view that is an example here. Whoever drafted these orders and I make no criticism of the Federal Magistrate who undoubtedly made them in a busy list, in drafting paragraph 4, places a semicolon at the end of each of the subparagraphs but does not link them. There is no "and" and there is no "or" after subparagraph (e).

15. The mother urged me to look behind the orders because of the uncertainty and she referred me to the family report that was provided to the parties in January 2008.  Initially I expressed reluctance about all of that, but having regard to a closer analysis of the order, I do not see that I have got much choice.  The particular report that was prepared for the federal magistrate was signed off by a Regulation 8 family consultant in private practice, Ms M. 

16. Ms M signed the report on 22 January 2008 so it is not very old.  I read specifically from her recommendations.  She said:

    The children spend time with the father on each Saturday 10 am to 5 pm for the first three months after which they spend time from Saturday 10 am to Sunday 5 pm for the next three months on a fortnightly basis.  Further to that their time with the father could be extended to Friday 5 pm to Sunday 5 pm on a fortnightly basis. 

17. In my view it is quite clear that what was intended by the psychologist was a building up arrangement starting with a day, and then moving to what the current position should be under the orders, namely Friday night through to Sunday night.  In my view that is the only logical interpretation of the orders.  It is quite clear that what was intended was that until 22 March 2008, the father was to spend just Sundays with the children.  Thereafter he was to spend Saturday morning through to Sunday night until 20 June.  On that day, he was to extend the time as the psychologist recommended from Friday night through to Sunday night.  In my view there is no other logical interpretation of the orders. 

18. Apart from anything else, if the father’s view was correct, it would mean that every Sunday these children would be spending time with their father.  They would never have a Sunday where they can spend time with their next‑door neighbour and friends at home or from school unless the father agreed.  That could not have been the purpose behind the orders.  In addition there could be no Sundays spent with their mother during any school holiday period.  They could never go away for any long periods of time during the long summer vacation. 

19. My view is that that would be totally illogical, but there is a more important  consideration and that is ultimately every parenting order must be made on the basis of what is in the best interests of the children.  I cannot see any material in the report of Ms M which suggests that it would be in the best interests of the children for the situation argued by the father.  Accordingly, the first thing I propose to do is rectify that situation.

20. The second issue relates to the question of what time the parties children are to spend with the father during school holidays.  It is very clear in the orders as to what period of time he is to spend with them up until the term holidays in 2009.  Why else would the draftsperson actually set out quite precise times and dates.  What the draftsperson did not do however was deal with the problem to which I have just referred about what happens on Sundays and alternate weekends.  As I said, if a literal interpretation was taken then it would mean that the children could never go away anywhere and there would be constant confusion.  That was certainly not a logical interpretation in my view, and certainly not one that I would find to be in the best interests of the children.

21. It has always been the policy of this court that during school holidays where there are precise orders for the sharing of time, that alternate weekend time with children is suspended.  It is logical.  The obvious situation where that does not occur is in circumstances where someone cannot have time away from their workplace.  That must factor in the negotiation for the children to have a holiday.  If that is the situation then specific arrangements need to be made.  For all intents and purposes therefore during school holiday periods the periods of alternate weekends have to be suspended. 

22. That gives rise to a problem during the long summer holidays when there is only one week during which the father can spend time with his children.  That equally does not make sense, having regard to the fact that he seems to be wanting quite considerable periods of time with them.  There is still ample time for the parties to sort that out before a federal magistrate does, and for that reason I am flagging the issue as one that concerns me.  For example if the father can only have one week off over the four or five weeks, some weekend time would need to be considered.

23. Every parenting case is governed by s 60CA of the Act. That says that I must not make an order unless it is in the best interests of the children. In a case like this it is very difficult to make anything other than temporary orders because of the fact that I do not have comprehensive information to work on.

24. However, as it is an application that has been filed very recently, the provisions of Division 12A of Part VII of the Act apply in which case the rules of evidence do not apply and I am entitled to determine issues on an interim basis using the best information I have available to me. I have drawn as much information as I can from the Federal Magistrates Court file as neither of the affidavits of the parties was particularly helpful.

25. In addition to saying that it is an order that is in the best interests of the child, the legislation requires me to consider the provisions of s 60CC.  Section 60CC is divided into two parts.  There are primary considerations and additional considerations.  The first of the two primary consideration is that the court is obliged to look at the question of the children benefiting from a meaningful relationship with both parents.  Unless there is some certainty in the lives of these children, then they will not benefit from having a meaningful relationship at least with their father.  The uncertainty around the interpretation of the orders which I find rather odd, means that these children do not know whether their father is coming or not, and more importantly if he is coming, whether their mother is going to allow them to go.  That has to stop.

26. The additional considerations in s 60CC turn on other issues such as parenting capacity and the ability of parents to provide for their children.  It seems to me there is no argument in this case about the ability of the respective parents to provide for their children.  However, I have some serious concerns about their respective capacities as parents.  They may very well be able to feed and clothe and get their children to school, but they do not communicate at all, notwithstanding as I said they have agreed on equal shared parental responsibility.

27. I flag that issue as well for the Federal Magistrate who hears this case to contemplate whether this is a case where the parties ought to be sent to a parenting program to learn how they can start to communicate with each other for the benefit of their four children.  As I said the eldest child in this case is almost 10, so there are only eight years left in which some of these problems can be sorted out. 

28. The other consideration in s 60CC which is relevant is how they have facilitated the relationship with the children and the other party, and how they have fulfilled the time they could have had with their children.  I have little doubt that the father wants to see his children and develop a relationship with them, but equally there needs to be some certainty in the lives of these children and I certainly have a question mark about just how dedicated to that task the mother is, but having put her on notice about all of that, the issue can be canvassed by the parties more carefully when they get to the Federal Magistrates Court hearing. 

29. In the circumstances this is a case in which I think the orders made on 13 February need to be varied. Finally before turning to the variation, in every parenting case the Act requires that I consider the question of the pathway commencing with equal shared parental responsibility. The parties have equal shared parental responsibility but that does not mean that I can simply ignore it. On an interim hearing it is not appropriate to make orders that flow from the equal shared parental responsibility order relating to equal time or significant and substantial time in circumstances where there is no evidence upon which I can be satisfied that I can do that in the best interests of the children.

30. That is clearly the situation here, and the parties need to think about their respective positions.  In the circumstances I propose to make some orders.

I certify that the preceding Thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: …

Date:  11 July 2008