VELDERMAN & VELDERMAN (No.2)
[2020] FCCA 1015
•13 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VELDERMAN & VELDERMAN (No.2) | [2020] FCCA 1015 |
| Catchwords: FAMILY LAW – Parenting – interim orders – where previous contravention proceedings – mother found guilty of charges of contravention without reasonable excuse – primary orders related to location of changeover and parties conducting changeover themselves – parties both made informal applications to vary primary orders under section 70NBA – father also sought the children spend an additional night with him – father’s additional application outside the primary orders – where orders made varying primary orders on interim basis – where orders made with Reasons to be delivered on a date and time to be advised. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61DA, 65DAA, 70NBA |
| Cases cited: Franklyn & Franklyn [2019] FamCAFC 256 |
| Applicant: | MR VELDERMAN |
| Respondent: | MS VELDERMAN |
| File Number: | SYC 7114 of 2017 |
| Judgment of: | Judge Morley |
| Hearing date: | 31 January 2020 |
| Date of Last Submission: | 31 January 2020 |
| Delivered at: | Sydney |
| Orders Pronounced: | 31 January 2020 |
| Delivered on: | 13 May 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms Santone of Santone Lawyers |
| Solicitors for the Independent Children's Lawyer: | Ms Gibblin as agent |
ORDERS
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
Any changeovers that do not occur by collection of or return of the children from and to school will occur at Suburb D Supermarket, inside the K Street entrance of those premises.
Order 1 of the orders made on 6 July 2018 is vacated, and all subsequent orders varying or amending that order are also vacated.
The children live with mother.
The children spend time with their father on a fortnightly basis as follows:
(a)In Week 1 from conclusion of school, or 3:00pm if not a school day, on Thursday until the commencement of school, or 9:00am if not a school day, on Friday;
(b)In Week 2, from the conclusion of school, or 3:00pm if not a school day, on Friday until the commencement of school, or 9:00am if not a school day, on the following Monday.
In relation to the order made today for the father to spend time with the children during school term time, Week 1 will commence on Thursday 6 February 2020, and Week 2 will commence on Friday 14 February 2020.
IT IS NOTED that publication of this judgment under the pseudonym Velderman & Velderman (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7114 of 2017
| MR VELDERMAN |
Applicant
And
| MS VELDERMAN |
Respondent
REASONS FOR JUDGMENT
These are the Reasons for orders 14 to 18 inclusive of the orders made on 31 January 2020.
Introduction
The parties to the proceedings are the Applicant Father, Mr Velderman (“the father”) and the Respondent Mother, Ms Velderman (“the mother”). The Independent Children’s Lawyer appointed in the matter to represent the interests of the children is Ms Renshall.
X, born in 2012, eight years of age, and Y, born in 2015, five years of age, are the children the subject of the proceedings.
The parties commenced cohabitation in 2010, married in 2012, and separated on a final basis on 20 August 2017, though they remained living under the same roof until 4 March 2018, when the mother and children vacated the matrimonial home property at A Street, Suburb B in the Region C area of outer Sydney.
The proceedings were commenced by an initiating application filed by the father on 27 October 2017. At the time of the hearing, proceedings had been on foot for two and a quarter years.
An interim hearing was conducted by his Honour, Judge Harper, (as his Honour then was) on 19 June 2018 and interim orders were made by his Honour following that hearing on 6 July 2018. Those orders included an order in the following terms:
[1] The children shall live with the mother and spend time with the father on a fortnightly basis as follows:
[a] Week one, with the father from 5:30pm on Thursday until such time as may be agreed between the parties in writing, and in the absence of agreement, 7:00pm Friday, with the father to collect the children at the commencement of time, and deliver the children at the conclusion of time to the mother’s residence; and
[b] Week two, from 5.30 pm Thursday until such time the following Sunday as may be agreed between the parties, and in the absence of agreement, 6.00 pm, with the father to collect the children at the commencement of time from, and deliver the children at the conclusion of time, to the mother’s residence.
On 1 March 2019, further interim orders were made by his Honour in the following terms:
[1] All existing orders with respect to changeover be discharged.
[2] Changeover shall take place at school on Thursdays during school term and at Suburb D Supermarket on Fridays and Sundays and during school holidays with each parent to carry out changeover unless otherwise agreed in writing.
On 12 April 2019, following an interim hearing held on 8 April 2019, I made orders, inter alia, that:
[3] That orders 1(a) and 1(b) of the orders made 6 July 2018 be varied by deleting the words “from 5.30 pm” and inserting instead the words “from 5 pm.”[1]
[1] Orders of Judge Morley on 12 April 2019, [3].
I also made orders providing for:
a)The suspension of the time the children spend with the father under the orders made 6 July 2018 (and corrected under the slip rule 30 July 2018) during school holiday periods, to revive and continue in the same pattern on the first Thursday after the end of each school holiday period;[2]
b)Time for the children to spend with their father during school holidays, the Easter break, and each of the children’s birthdays;[3] and
c)Changeovers, during school holidays from the end of term 3 in 2019 onwards, to take place at Suburb D Supermarket on K Street, Suburb D at 6:00pm on Saturdays in the middle of the school holidays and at 6:00pm on Saturday for the alternating weeks of the Christmas school holidays when not otherwise taking place at school or preschool.[4]
[2] Orders of Judge Morley on 12 April 2019, [4].
[3] Orders of Judge Morley on 12 April 2019, [5], [6], [7].
[4] Orders of Judge Morley on 12 April 2019, [8].
On 28 February 2019, the father filed an Application – Contravention (‘the February Application’) against the mother, with a supporting affidavit. The February Application was listed for hearing on 15 July 2019.
On 5 July 2019, the father filed a further Application – Contravention against the mother with a supporting affidavit (‘the July Application’), repeating the contraventions alleged in the February Application and adding further asserted contraventions. The July Application was also set down for hearing on 15 July 2019.
On 15 July 2019, I commenced the contravention hearing by defining which alleged contraventions would proceed to hearing. I allowed five of the 12 asserted contraventions to proceed to hearing.
I then heard a cross-examination of the father by Ms Santone as solicitor-advocate for the mother, heard submissions on behalf of each party in relation to the prima-facie case for each alleged contravention, and then made a finding that a prima-facie case had been established in relation to three of the five alleged contraventions, and not established in relation to the other two. The matter was then adjourned part-heard to 6 August 2019 at 10:00am, for the mother to present her defence to the three contraventions in relation to which I had found the prima-facie case.
On 6 August 2019, I heard the contravention matter to conclusion and heard submissions on behalf of each of the parties. I reserved judgment in relation to each of the three asserted contraventions. In written submissions and in oral submissions presented on that day, it was plain that both parties were seeking a variation of the interim orders and I made directions for the filing and service of written submissions in relation to any variation of the interim parenting orders. It would have been more suitable had I ordered that the parties file an Application in a Case and Response with supporting affidavits in relation to variation of interim orders, but I did not do so.
On 23 January 2019, I delivered judgment in relation to the contravention hearing. In that judgment, I found that the mother had, without reasonable excuse, contravened the orders on two occasions. I made findings in relation to part Division 13A of Part 7 of the Family Law Act 1975 (Cth) (“the Act”). The matter then fell for consideration of penalty, and I found that it fell within Subdivision E, the alleged contraventions being less serious contraventions.
I noted that in the mother’s written submissions, prepared on her behalf by Mr Johnston of Counsel who appeared for her on the second day of the hearing, she sought to put forward further oral submissions in relation to penalty, in view of her being qualified in law, having at some time held a practicing certificate under the relevant legislation governing the legal profession in New South Wales, and it being an obligation upon her under the relevant legislation to notify the Law Society of New South Wales that she had been found to have contravened an order of the Court in the event that she sought the issue to her of a further Practicing Certificate.
I determined that the matter should be relisted before me to give the mother an opportunity to make those further submissions and provide an opportunity to the father to make any submissions on the issue.
In relation to the “informal applications for variation of the orders is set out in their case outline documents”,[5] as I termed the matter in paragraph 117 of my Reasons for judgment, I noted that in the form the applications were made – without an Application in a Case or Response to an Application in the Case – they were brought under section 70NBA of the Act, which provides that the Court may vary a primary order in circumstances where the Court has heard an Application – Contravention, and has found that a person has committed a contravention of the primary order.[6]
[5] Velderman & Velderman [2020] FCCA 85, [117] (published as Velderman & Velderman [2020] FCCA 85).
[6] Family Law Act 1975 (Cth) s 70NBA(1).
I set down in my Reasons why I considered that the primary order referred to in section 70NBA of the Act was the primary order that the Court had found the person to have contravened.[7] In this matter, the primary order related to changeover at the start and finish of the father’s time with the children, and persons attending changeover.[8] I also noted clearly that the informal Applications of each of the parties went to matters beyond the primary order,[9] and I indicated that I intended to grant leave to the parties to bring their informal applications for variation of orders as set out in their case outline documents and to consider those applications and to make orders, if at all, in the best interests of X and Y.[10]
[7] Velderman & Velderman [2020] FCCA 85, [105], [113]-[117].
[8] Velderman & Velderman [2020] FCCA 85, [115].
[9] Velderman & Velderman [2020] FCCA 85, [116].
[10] Velderman & Velderman [2020] FCCA 85, [117].
I also noted that the Independent Children’s Lawyer was not involved in the contravention proceedings, and that I had no evidence before me that the Case Outlines of the parties addressing the competing informal applications for variation of the current interim parenting orders had been served on the Independent Children’s Lawyer.[11]I therefore determined that the matter should go over, so that I could receive submissions from the Independent Children’s Lawyer after she had received the relevant material from the parties.[12]
[11] Velderman & Velderman [2020] FCCA 85, [118]-[119].
[12] Velderman & Velderman [2020] FCCA 85, [120].
On that basis, I made the following orders on 23 January 2019:
[1] That the contravention Application filed by the Father on 5 July 2019 and heard on 15 July and 6 August 2019 be further adjourned for further submissions on the issues of appropriate orders and, if relevant, penalty to 9:30AM on 31 January 2020.
…
[3] That the informal application made by each of the parents in submissions for a variation of the interim parenting orders be heard on 31 January 2020 at which time the Independent Children’s Lawyer will have an opportunity to make submissions.
[4] That, if they have not already done so, each of the parents serve on the Independent Children’s Lawyer a copy of their written submissions on variation of the interim parenting orders as already provided to the Court in Chambers.
The material relied upon by the parties on 31 January 2020
The father relied on a document prepared on his behalf by his former solicitor entitled ‘Submissions for applicant father pursuant to the orders of Judge Morley dated 6 August 2019’ addressing the orders the father sought in alteration of the then-existing interim orders and making submissions in support of that Application.
The mother relied upon the following material:
a)The document entitled ‘Mother’s submissions in support of variation to parenting orders’ dated 23 August 2019 and prepared on her behalf by Mr Johnston of Counsel, setting out the orders sought by the mother in variation of the current interim parenting orders and submissions in support of those orders, as well as the paragraphs seeking opportunity to make further submissions in relation to penalties should the Court find the mother guilty of any of the alleged and then tried contraventions, as already outlined above;
b)A further document entitled ‘Mother’s submissions in support of variation to the parenting orders, penalty and costs’ prepared by the mother’s solicitor, Ms Santone, and dated 31 January 2020, and containing, as relevant to these Reasons, submissions under a heading ‘Submissions regarding alteration of parenting orders’; and
c)A ‘Minute of orders sought by the Respondent Mother before Judge Morley, 31 January 2020’ that set out the orders sought by the mother in variation of the existing interim parenting orders, as well as the orders sought by the mother in relation to the Court’s findings in relation to the contravention hearing and in relation to the costs of the contravention hearing.
The Independent Children’s Lawyer was represented on 31 January 2020 by Ms Giblin as agent. The father appeared on his own behalf and Ms Santone appeared as solicitor-advocate for and with the mother. I note that about two-thirds of the way through the proceedings on 31 January 2020, Ms Santone made an Application that the mother be excused from attendance as she needed to breastfeed her infant baby, a child not the subject of these proceedings, and that the baby was in childcare at Suburb R. Accordingly, the mother left the Court.
Ms Giblin, in her oral submissions before the Court, relied upon the contents of a Family Report in the matter, dated 8 August 2019, prepared by family consultant Ms S. The Family Report had been released to the parties by an order made 8 August 2019, and in consequence, they had had the document for just over six months before the subject proceedings on 31 January 2020.
Accordingly, the applications for variation of the parenting orders were not supported by any sworn evidence, written or oral, prepared or presented specifically in relation to the applications to vary. However, as will be indicated, the applications to vary were dealt with by me pursuant to section 70NBA of the Act, as being considered consequent upon the contravention proceedings, and as being confined to the orders in issue in the contravention proceedings going to matters surrounding when and where changeovers occurred and who was required to be present at changeovers (those being the issues in the primary orders).
For that reason, I make clear at this point that the two orders in relation to which I found the mother guilty of contravention without reasonable excuse were:
a)Order 1(b) of the orders made 6 July 2018, in relation to the place of changeover; and
b)Order 2 of the orders made 1 March 2019, in relation to the mother’s failure to personally attend a changeover at the end of the father’s time, as opposed to sending another to attend the changeover on her behalf.
The competing proposals of the parties
The father sought the following orders in place of the existing interim orders:
a)That orders 1(a) and 1(b) of the orders made 6 July 2018, order 1 of the orders made 30 July 2018, and orders 1 and 2 of the orders made 1 March 2019 all be vacated.
b)That the children live with the mother and spend time with the father as follows:
i)In week 1, from 3:00pm on Thursday until 9:00am on Friday, with the father to collect the children at the start of his time from school/preschool and deliver the children at the end of his time to school/preschool, and in the event the Friday is not a school day, or one or both children are sick, changeover occur at 7:00pm at Suburb D Supermarket; and
ii)In week 2, from 3 pm on Thursday until the following Monday at 9:00am, with the father to collect the children at the start of his time from their school/preschool, and deliver the children at the children at the conclusion of his time to their school/preschool, and in the event that Monday is not a school day or on occasion when one or both children are sick, then changeover will take place at 7:00pm at Suburb D Supermarket.
c)That each parent is to personally carry out changeover, unless otherwise agreed to in writing, or alternatively, a family member of either of the parties may carry out changeover, with the exception of Mr G, the maternal grandfather.
d)That the parties do all things necessary to ensure that Y attends T Pre-School on the following days:
i)Mondays from 9:00am to 3:00pm;
ii)Thursdays from 9:00am to 3:00pm; and
iii)Fridays from 9:00am to 3:00pm.
e)That the costs of Y’s childcare is to be met by both parents equally.
f)That the parties do all things necessary to ensure that the children attend and remain in school/preschool during their enrolled school times.
The mother sought the following orders:
a)That the following orders be discharged:
i)Order 1(b) made 6 July 2018;
ii)Order 2 made 6 July 2018;
iii)Order 1 made 30 July 2018;
iv)Order 2 made 1 March 2019;
v)Order 3 made 12 April 2019;
vi)Order 7 made 12 April 2019; and
vii)Order 8 made 12 April 2019.
b)That the children live with their mother.
c)That the children spend time with the father during the New South Wales school term on a fortnightly basis as follows:
i)During week 1, from after school or 3:00pm on Thursday, and before school or 9:00am on Friday; and
ii)During week 2, from after school or 3:00pm on Friday, and before preschool/school or 9:00am Monday.
d)That the children spend time with the parties during the New South Wales school holidays as follows:
i)During the school holidays at the end of terms 1, 2 and 3:
(1)In odd‑numbered years for the first half of the holidays with the father, and the second half of the holidays with the mother; and
(2)In even years, with the first half of the holidays with the mother, and the second half of the holidays with the father,
coupled with changeover to occur at 6:00pm on the middle Saturday of the school holidays;
ii)That notwithstanding any other order, the children spend time with the mother during the school holidays at the conclusion of term 1 from 6:00pm Saturday, 25 April 2020 until school resumes;
iii)During the school holidays at the end of term 4:
(1)In 2020/2021, and each alternate year thereafter:
(i)From after school at the conclusion of term 4 until 2:00pm on 25 December with the mother;
(ii)From 2:00pm 25 December until 12:00pm 29 December with the father;
(iii)From 12:00pm 29 December until 6:00pm 4 January with the mother;
(iv)From 12:00pm 11 January until 6:00pm 18 January with the father;
(v)From 6:00pm 18 January until 6:00pm 25 January with the mother;
(vi)From 6:00pm 25 January until school resumes with the father.
(A)In 2021/2022 and each alternate year thereafter:
(i)From after school at the conclusion of term 4 until 2:00pm on 25 December with the father;
(ii)From 2:00pm 25 December until 12:00pm 29 December with the mother;
(iii)From 12:00pm 29 December until 6:00pm 4 January with the father;
(iv)From 12:00pm 11 January until 6:00pm 18 January with the mother;
(v)From 6:00pm 18 January until 6:00pm 25 January with the father; and
(vi)From 6:00pm 25 January until school resumes with the mother.
(B)That for the purpose of calculating when school holidays commence, they shall commence on the afternoon of the last day of the children’s school and include any pupil‑free days or public holidays. For the purpose of calculating when school holidays end, they shall end on the morning of the children’s first day of school and include any pupil‑free days or public holidays.
(C)That for the purpose of calculating the father’s time at the beginning of each term, “week 1” shall commence at the beginning of each term.
(D)That changeover shall occur at school and on non‑school days (being holidays, weekends that require changeovers, or when a child has not attended school on a school day) at Suburb D Supermarket, with the parties, a family member or a friend to carry out changeover. In the event that a party is not going to facilitate changeover in person, they shall inform the other by text message one hour prior to changeover of the person who will be facilitating changeover.[13]
[13] Emphasis added.
(E)That order 3 (being the time the children spend with their father) be suspended on the following special occasions:
(i)If Father’s Day falls on a weekend when the children are not already spending time with the father, the children are to spend time with the father from 6:00pm on the Saturday before Father’s Day until before school the following day;
(ii)If Mother’s Day falls on a weekend when the children are not already spending time with the mother, the children are to spend time with the mother from 6:00pm on the Saturday before Mother’s Day until before school the following Monday;
(iii)On the mother’s birthday, if the children are with the father, then they are to spend time with the mother for four hours on a school day, commencing at 3:00pm until 7:00pm, and for four hours on a non‑school day, as agreed, but failing agreement, from 3:00pm until 7:00pm;
(iv) On the father’s birthday, if the children are with the mother, then they are to spend time with the father for four hours on a school day, commencing at 3:00pm until 7:00pm, and for four hours on a non-school day, as agreed, but failing agreement, from 3:00pm until 7:00pm;
(v)At Easter:
(I)In 2020, and each alternate year thereafter:
i.From 3:00pm Good Friday until 1:00pm Easter Sunday with the father; and
ii.From 1:00pm Easter Sunday until 6:00pm Easter Monday with the mother.
(II)In 2021, and each alternate year thereafter:
i.From 3:00pm Good Friday until 1:00pm Easter Sunday with the father; and
ii.From 1:00pm Easter Sunday until 6:00pm Easter Monday with the mother.
I note that the orders proposed by the mother relating to the school holidays at the end of term 4 have an unallocated gap for the period from 6:00pm on 4 January until 12:00pm on 11 January in each case.
The Independent Children’s Lawyer did not present a Case Outline or Minute of Order, but in submissions on the day Ms Giblin indicated that the Independent Children’s Lawyer proposed orders that addressed changeover,[14] that such orders be in line with the recommendation of the Family Report, and that the father’s time during school term with the children commence after school on Friday and conclude before school on Monday in one week, and commence after school on Thursday and conclude before school on Friday in the other week “We would be seeking the Court alter the orders as per the family report”.[15]
[14] Transcript page 23, lines 15-27.
[15] Transcript page 22, line 6.
The evidence
As I have indicated, this was not a matter where evidence was presented in support of the competing applications of the parties and the Independent Children’s Lawyer by way of affidavit evidence or exhibits.
The Family Report of 8 August 2019 was referred to by Ms Giblin in submissions on behalf of the Independent Children’s Lawyer, and the Independent Children’s Lawyer sought to have the Court follow the recommendations made in that report. I should say here that the father, for his part, advised the Court in his submissions that he had a:
… problem with integrity of the report, and how it came about, and how the interviews proceed, and what are the findings, and what evidence was considered and what was omitted, and so on and so forth.[16]
[16] Transcript page 25, lines 23-25.
It is appropriate in all matters, interim or final, for it to be clear in Reasons for judgment what material has been relied upon by the Court as the pool of evidence considered.[17] I have indicated above the material relied upon by the parties.
[17] Franklyn & Franklyn [2019] FamCAFC 256.
In relation to the orders I made on 31 January 2020, I considered all of the material in the written submissions of the father, the written submissions of the mother dated 23 August 2019 (except those under the heading ‘Penalty Phase’), the written submissions of the mother dated 31 January 2020 under the heading ‘Submissions Regarding Alteration of Parenting Orders’, and the Minute of Orders sought by the mother.
I also considered the contents of the Family Report dated 8 August 2019, that document being relied upon by the Independent Children’s Lawyer and being addressed by the father. I had read that Family Report on the day of and prior to the hearing. I also considered all of the oral submissions before me on 31 January 2020 and in particular, but not limited to, those that I will refer to hereunder.
The orders sought by the father in relation to the time he would spend with the children and in relation to changeover differed from the then-existing interim orders, in that they sought to extend his time with the children from 6:00pm on Sunday until 9:00am on Monday.
In relation to changeovers, he sought to alter the existing interim orders in the following ways:
a)The changeovers in week 1 on Friday would take place by delivery of the children to school (preschool having become irrelevant, because Y commenced attending kindergarten at the same school that X attended – Suburb E Public School – at the start of February 2020);
b)The orders sought eliminate the term-time Sunday afternoon changeover by having the changeover at the end of his time during school term by delivery to school on Monday, subject to the children being at school; and
c)Where the children are not at school on the Monday, the orders propose changeover at 7:00pm on the Thursday at Suburb D Supermarket at the end of his time in week 1, and at 7:00pm on Monday at Suburb D Supermarket at the end of his time in week 2.
The father also sought a change to the existing orders, changing or ‘curing’ one of the orders contravened by the mother, by no longer requiring the parents to conduct changeovers “personally”,[18] but allowing changeover as agreed in writing or by a family member, “…with the exception of Mr G, the maternal grandfather”.[19]
[18] Submissions for Applicant Father pursuant to the Orders of Judge Morley dated 6 August 2019, 2[3].
[19] Submissions for Applicant Father pursuant to the Orders of Judge Morley dated 6 August 2019, 2[3].
Albeit that the mother did not seek to extend the father’s time as he sought, the mother’s orders sought to ‘cure’ the changeover problems that were the subject of the contravention proceedings by:
a)Having the father’s time with the children on each occasion during school term start from and end at the children’s school, with any changeovers that could not occur at school being, as before, at Suburb D Supermarket; and
b)Without a requirement that the parties themselves personally attend changeover.[20]
[20] Minute of Orders Sought by the Respondent Mother Before: Judge Morley, 3[7].
The proposal by the Independent Children’s Lawyer for a change to the orders, mirroring the recommendations in the Family Report, had the same effect.
I was particularly conscious of the orders sought by the father to the effect:
…that the parties do all things necessary to ensure that the children attend and remain in school/preschool during their enrolled school times.[21]
[21] Submissions for Applicant Father pursuant to the Orders of Judge Morley dated 6 August 2019, 2[7].
This conflicted with a submission made by him later in the hearing, after I asked him to address the Court on a specific order commencing his alternate weekend time from Friday rather than Thursday. The father submitted that he regarded his time with the children during Friday when they were at school as in their best interests, as it enabled him to take them to any appointments that needed to be made for them during a weekday. In that submission, the father did not refer to:
a)Any occasions when that had happened;
b)Any occasions when it needed to happen; nor
c)Any appointments so made.
The orders sought by the father related to matters other than the “primary orders”, as referred to in section 70NBA,[22] the primary orders the subject of the contraventions. The non-primary orders related to Y’s attendance at T Pre-School and the costs thereof. The orders sought by the father in relation to Y and preschool were relevant when he prepared written submissions for 6 August 2019, but had become irrelevant as she was starting kindergarten attendance a few days after 31 January 2020.
[22] Family Law Act 1975 (Cth) s 70NBA(1).
I indicated my understanding of the meaning of that section 70NBA in my judgment delivered 23 January 2019,[23] and though in that judgment I indicated that I may be prepared to look beyond that range of orders (that is, location of changeover and persons conducting changeover), I made it clear in exchanges during submissions on 31 January 2020 that:
a)I would not be looking beyond the meaning of the orders referred to in that section; and
b)I would be dealing with matters relating to changeover, though in dealing with changeover, it would have an effect on start and finish times of the father’s time with the children, but not the number of nights per fortnight.
[23] Velderman & Velderman [2020] FCCA 85, [113]-[120].
In that regard, I was conscious of the father’s written submission under the subheading “The Father’s Position”[24] that:
…regardless of the outcome of the father’s contravention application, it has become clear that at the present time changeovers in respect of the children cause a real difficulty for the parties.[25]
[24] Submissions for Applicant Father pursuant to the Orders of Judge Morley dated 6 August 2019, 2[c].
[25] Submissions for Applicant Father pursuant to the Orders of Judge Morley dated 6 August 2019, 2[c].
The father’s written submissions under that subheading go on to mainly address his application that both Thursday nights with the children be retained and that his time be extended over Sunday night to the start of school on Monday, or 7:00pm on Monday if it was not a day for school attendance.
Paragraph 8 the father’s submissions under that heading was in relation to X having been attending mathematics tutoring every Thursday night and that such classes were only available on Thursdays due to the teacher’s scheduling. There was no evidence before the Court about X and maths tutoring, but I accepted that paragraph in the father’s written submissions as establishing that X was attending mathematics tutoring on Thursday nights.
I found for the purpose of the orders that I made on that 31 January 2020, that rearrangement of the father’s time from being ‘Thursday to Sunday’ to become ‘Friday to Monday’, thereby eliminating the Sunday evening non-school changeover, was preferable, in the best interests of X, to either:
a)Maintaining the Thursday start and Sunday end; or
b)Increasing the father’s time to be from Thursday to Monday, so enabling X to attend mathematics tutoring with his father each Thursday night rather than with his father every second Thursday night. It is open to his mother to take him to that tutoring on the other Thursday night, but not mandatory.
I also noted and considered the father’s written submission under the heading “Ensuring Smoother Changeovers for the Children”,[26] that:
1. In summary, the proposed orders for the father smoother [sic] and less stressful changeovers for the children and the parties.
2. The orders sought in the minute of order will minimise the interactions between the parties so that all changeovers during the school term will occur at the children’s school or preschool.
3. The changeovers have historically been tense and problematic for the parties, and the mother has contravened court orders relating to the changeover on multiple occasions.
[26] Submissions for Applicant Father pursuant to the Orders of Judge Morley dated 6 August 2019, 4[v].
In his written submissions, the father laid importance on being able to “drop the children at their respective preschool and school on Friday mornings and pick them up in the afternoons”,[27] and:
3. This will give the father an opportunity to discuss the children’s day with Y and X and participate in the children’s routine on a school day, including packing lunches with the children, helping them with their homework and interacting with the parents of the children’s friends.
[27] Submissions for Applicant Father pursuant to the Orders of Judge Morley dated 6 August 2019, 5[vi][2].
The father elaborated on these submissions in his oral submissions.
Similarly, in the mother’s first set of written submissions dated 23 August 2019, it is put that:
1. The purpose of making a variation to the existing regime is to avoid the types of problems that have beset changeovers.
2. This is not an opportunity for the father to seek additional time with the children as he seeks to do …
3. The mother’s proposal is for changeovers to occur at school/preschool, as is the father’s proposal.
4. Changeovers would only occur away from school/preschool on a non-school day at Suburb D Supermarket …[28]
[28] Mother’s Submissions in Support of Variation to Parenting Orders dated 23 August 2019, 2.
In her written submissions dated 31 January 2020, the mother puts at paragraph 7:
The mother asserts that the number of nights the father spends with the children during term time should not increase. It should also be noted that Y is about to commence kindergarten, and no dramatic changes should occur at this time.[29]
[29] Mother’s Submissions in Support of Variation to Parenting Orders, Penalty and Costs dated 31 January 2020, 2[7].
I will note at this point that in the Family Report the family consultant made an error in relation to the number of nights the father was spending with the children pursuant to the existing interim orders, stating it correctly as four nights per fortnight in paragraph 14, but mis-stating it as five nights per fortnight in paragraph 127.[30]
[30] Family Report prepared by Ms S dated 8 August 2019.
The mother’s solicitor refers to the error in paragraph 5 of the written submissions of 31 January 2020 and states, “This has been clarified by her”.[31] It was referred to by Ms Giblin in her oral submissions after I mentioned the mistake, and Ms Giblin advised “She has confirmed that her recommendation is that the father continues to spend four nights a fortnight with the children.”[32]
[31] Mother’s Submissions in Support of Variation to Parenting Orders, Penalty and Costs dated 31 January 2020, 2[5].
[32] Transcript page 21, lines 26-45.
The oral submissions for the Independent Children’s Lawyer
Ms Giblin submitted for the Independent Children’s Lawyer:
The amendments that Ms S does recommend, which is attractive to the Independent Children’s Lawyer, and appears to be sensible, is that the changeovers, as much as possible, occur at the schools. So Ms S puts forward a proposal that the father’s time commences after school on Friday until before school on Monday.
And also in his off-week, he will be spending after school on Thursday until before school on Friday with the children. That position is adopted by the Independent Children’s Lawyer, and it is supported. … It’s the Independent Children’s Lawyer’s position that, in practical terms, the father’s – if your Honour was to make the minor amendments to the father’s time, the father would actually, in fact, be getting more face-to-face time with the children. When he’s spending time with the children on the Thursday and Friday they’re at school, so he’s ultimately spending afternoons with them, but on this proposal at least, he would be after school Friday, he would have all day Saturday, all day Sunday, and Monday until the start of school.
That will also give him the opportunity to be part of their school life. He would be able to prepare their lunches, prepare them for school, get them in their uniforms, get their bags ready, which I understand from the father is something that he desperately yearns for. … The father, in his written submissions, as I understand it, seeks that additional night, being the Thursday night, so that he can take X to maths tutorials. From our perspective he’s seven, your Honour. It may not be necessary at this time for X to engage in a maths tutorial every week. The father has the option of the week that he does have him on a Thursday that X can continue his maths tutoring that the father is seeking.
But in relation to X all of the independent sources of information, primarily being the school, is that X is currently thriving in the current arrangements. So no matter what is happening, the animosity and the tension between these parents, through reports that we have is that X is currently thriving in the current arrangements.[33]
[33] Transcript pages 21-22, lines 46-30
Ms Giblin confirmed, in response to my question, that Y was commencing kindergarten in the days following the interim hearing at Suburb E Public School, the school attended by X, who was going into Year 1.
Ms Giblin then advised the Court that she had had an opportunity to speak to the father, and he had conveyed to her that he had not had a proper opportunity to correctly consider the parenting orders as sought by the mother in her minute of order provided to the Court and to him and to the Independent Children’s Lawyer’s counsel on the day about the variation to the orders made on 12 April 2019 following the interim hearing relating to school holidays, Easter and birthdays.
That formed part of my consideration leading to my finding that I would only deal with orders that I considered as primary orders within the terms of section 70NBA. In this regard, I commented:
Varying amount of time by dealing with extra days, less days, holidays, birthdays, Christmas, and all that sort of thing, doesn’t fall under that section, because none of that was a primary order that was the subject of a contravention.[34]
[34] Transcript page 24, lines 1-4.
The Father’s oral submissions
The father commenced his oral submissions by referring to the Family Report and his “problem with the integrity of the report”,[35] and referred me to the case of Hazan & Elias,[36] and the reference therein by Watts J to the admissibility of a Family Report being subject to challenge under the rules of evidence and on the basis of, for instance, bias and matters of natural justice. At that point, I indicated to the father that what I needed to hear from him was his submissions addressing my inclination, following the contravention proceedings, to vary the changeover orders so that changeovers took place at school, and that such changeovers that did not take place at school take place at the Suburb D Supermarket attended by the parents or whomever else the parents send along to undertake that changeover.[37]
[35] Transcript page 25, line 23.
[36] Hazan & Elias [2011] FamCA 376.
[37] Transcript page 26, lines 1-8.
The father responded, “Well, I agree”,[38] and after further discussion, the father said “There is no issue in terms of location, because I think it’s resolved, because in essential we agree if it is possible in school … Let’s make it in school … when it can’t be at the school it should stay in Suburb D Supermarket …”.[39]
[38] Transcript page 26, line 10.
[39] Transcript page 26, lines 34-44.
In response to my question, “And who should attend?”,[40] the father responded:
Well, at least we – I suggest, your Honour, we should have obligation under the order that the person at least needs to tell the parent who they are to be expected to hand the children to.[41]
[40] Transcript page 26, line 46.
[41] Transcript page 27, lines 1-3.
I indicated that that is a circumstance that was proposed by the mother in her order, and the father responded “Okay, so I agree to that in a sense.”[42]
[42] Transcript page 27, line 9.
The Mother’s oral submissions
In her oral submissions on behalf of the mother, Ms Santone indicated that the mother was in agreement with the inclination I had voiced to the father – that the fortnightly weekend time that the father spends with the children would change from Thursday to Sunday to Friday to Monday – so that all relevant changeovers could take place from and to the children’s school.
At this point, Mr Velderman indicated that he had something further to say on that topic, and I indicated to him that I would give him that opportunity “…because it’s my intention to make it Friday to Monday so that the changeovers are at school.”[43]
[43] Transcript page 31, lines 22-23.
When Ms Santone had completed her submissions, I did return to Mr Velderman and asked him to make further submissions:
only about one thing, that it’s my intention to readjust the time that you have the kids from after school Friday to after school Monday one week, and from after school Thursday to after school Friday the other week, so that all changeovers during term time can occur at school and there’s only one parent there – the parent who’s picking them up.[44]
[44] Transcript page 34, lines 1-5.
In the course of the father’s further submissions, I clarified that he was able to get the children to school on Monday morning. The father, in his further submissions, was seeking to retain the Thursday night before his weekend time with the children so that he retained every Thursday night with the children. He indicated that he sought to retain that night because:
…you’re preparing to school. We are talking about school. And then I dropped him off there, and when I pick him up, we talk about the day. That’s one thing. And also that Friday is actually the only working day in the fortnightly cycle that I actually – I have a chance – a real chance to actually take the children if I need to from the school to an appointment or whatever it need to be … on Friday, because it is entire day.[45]
[45] Transcript pages 36-37, lines 40-1.
I indicated to the father that I could cure that by starting his time on the Friday at 11:00am.[46] Before making orders, considering the order had been sought by the father himself in his written submissions:
…that the parties do all things necessary to ensure that the children attend and remain in school – preschool during their enrolled school times[47]
I found that I would not make an order commencing his time with the children at 11:00am on the Friday.
[46] Transcript page 35, lines 5-6.
[47] Submissions for Applicant Father pursuant to the Orders of Judge Morley dated 6 August 2019, 2[7].
The father and I then had an exchange about the number of occasions under the order I was inclined to make, as opposed to the interim orders as they stood at the time of the interim hearing, that he would have to pick the children up from school and to deliver them to school, and that the number of times did not change.[48]
[48] Transcript pages 36-37, lines 1-14.
The father and I then had an exchange about the difference between quantitative and qualitative considerations in these matters.[49]
[49] Transcript page 37, lines 14-28.
The law
I remained conscious in the hearing of the objects of Part VII of the Act as set out in section 60B, and of the principles that underlie those objects, as set out in that section. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.[50]
[50] Family Law Act 1975 (Cth) s 60CA.
The child’s interests are not the only consideration, parents and other persons are also relevant considerations, but the child’s interests must always be the paramount consideration.
In determining what is in a child’s best interests, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC of the Act and make findings.
Section 61DA provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest of the child, for the child’s parents to have equal shared parental responsibility for the child.[51] The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse.[52] The presumption, when applied, 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.[53]
[51] Family Law Act 1975 (Cth) s 61DA(1).
[52] Family Law Act 1975 (Cth) s 61DA(2)(a), (b).
[53] Family Law Act 1975 (Cth) s 61DA(2)(d).
When the Court is considering parenting matters on the interim basis, the presumption applies, unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order.[54]
[54] Family Law Act 1975 (Cth) s 61DA(3).
Section 65DAA of the Act requires that when a Court makes an order that the child’s parents have equal shared parental responsibility for the child, the Court must go on to consider the concepts of the child spending equal time with each of the child’s parents, through the three-step reasoning process set out in the section.[55] If it is not considered in the child’s best interests to make such an order, the Court must go on to consider the child spending substantial and significant time with each of the child’s parents (the meaning of which is set out in section 65DAA(3)) by again following the three-step reasoning process.[56]
[55] Family Law Act 1975 (Cth) s 65DAA(1).
[56] Family Law Act 1975 (Cth) s 65DAA(2).
If section 65DAA applies and the Court does not make an order for equal time or substantial and significant time, the Court must then go on to consider what orders are proper to be made in the best interests of the child.
As to what is ‘proper’ and how the Court’s discretion is to be exercised, I note the comments of the Full Court of the Family Court of Australia in Grella & Jamieson[57] at paragraph 18:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[58]
[57] Grella & Jamieson [2017] FamCAFC 21.
[58] Grella & Jamieson [2017] FamCAFC 21, [18].
The considerations under section 60CC
The primary considerations in section 60CC are the benefit to the children of having a meaningful relationship with both of their parents,[59] and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[60] The Act mandates in subsection (2A) that the Court must give greater weight to the consideration of the need to protect the children over the benefit of the children of having a meaningful relationship with both of their parents.[61]
[59] Family Law Act 1975 (Cth) s 60CC(2)(a).
[60] Family Law Act 1975 (Cth) s 60CC(2)(b).
[61] Family Law Act 1975 (Cth) s 60CC(2A).
I will take the primary considerations in the reverse order. There was no evidence before me of a need to protect X and Y from any risk other than the risk of their being exposed to tension and possible unpleasant conduct (but not physical violence) between their parents at the time of changeover, or between the father and the maternal grandfather attending on behalf of the mother at changeover.
I found that this risk had become, to a degree, unacceptable given the history of the matter set out in the contravention proceedings and the results thereof, which led to my consideration of a variation of the primary order relating to changeover, pursuant to section 70NBA, but that such unacceptable risk could be mitigated on the maximum number of occasions by providing for changeovers to take place at the children’s school, necessitating an attendance on each occasion of changeover by only the parent into whose care the children were passing, or in whose care they already were on a continuing basis.
On the basis of the result of the contravention proceedings, I found that the changeover at 6:00pm on Sunday was the ‘touch point’ between these parents. Accordingly, I found that it was in the children’s best interests that as many changeovers as possible take place by delivery or collection from school by one parent only. I further found that such was best achieved by moving the start time of the father’s alternate weekend time with the children from Thursday after school to Friday after school so that the time could end, without being significantly diminished in relation to the father’s actual face-to-face ‘quality time’ with the children, from Sunday at 6:00pm to Monday at the start of school.
The father’s alternate week time with the children from Thursday after school until Friday start of school already had the advantage of school changeover and accordingly, I found there was no need to make any alteration to that part of the order.
The children have a meaningful relationship with both of their parents. Despite the appalling state of the relationship between these parents, one to the other, and the poor state of the relationship between the father and the maternal grandfather, the report writer found that the relationship of each of the children with each of the parents was, to interpret her words, in excellent condition.
The children having a meaningful relationship with both of their parents is so self-evidently in their best interests, and to their long-term benefit, that I need not drill down in these Reasons into the social science behind my finding that there is benefit to the children of having a meaningful relationship with both of their parents, and that they can be protected from the only risk that I find occurs by having the maximum number of changeovers possible occur at school, attended by one parent.
I find that the same reasoning goes to removing the order that prevailed at the time of the contravention hearing and of the interim hearing, that each of the parents must personally attend on each changeover, and providing that changeover can be attended by other persons on behalf of a parent, provided the other parent is informed of the identity of the person standing in for the parent no later than one hour prior to the changeover, which, in addition to it being my finding, was a circumstance agreed to in the interim hearing by both of the parents and recommended by the Independent Children’s Lawyer.
In relation to the issue at the interim hearing to which these Reasons go, the alteration of the order from Thursday to Sunday to Friday to Monday, there is nothing to be found in relation to the additional consideration going to any views expressed by the children.[62] I note that in paragraph 78 of the Family Report, the family consultant reports “X stated that he enjoyed spending time with both his mother and his father.”[63]
[62] Family Law Act 1975 (Cth) s 60CC(3)(a).
[63] Family Report prepared by Ms S dated 8 August 2019, [78].
At paragraph 81, the family consultant reports “X stated that he liked the amount of time he spent with his father as they, ‘played video games’ together.”[64]
[64] Family Report prepared by Ms S dated 8 August 2019, [81].
Y was not interviewed.
I have already made comment and findings in relation to the nature of the relationship of the children with each of their parents.[65] In relation to this issue, it is not necessary to give consideration to the nature of the relationship of the children with other persons, and in particular their maternal grandfather and paternal grandmother.[66]
[65] Family Law Act 1975 (Cth) s 60CC(3)(b)(i).
[66] Family Law Act 1975 (Cth) s 60CC(3)(b)(ii).
In relation to the additional consideration going to the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents, I find that the adjustment of the father’s time from Thursday to Sunday to Friday to Monday is not only not likely to have any effect on the children against their best interests, but for the reasons I have given in relation to avoiding the parents meeting at changeover (and avoiding the father and maternal grandfather meeting at changeover), any effect is likely to be a beneficial one.[67]
[67] Family Law Act 1975 (Cth) s 60CC(d)(i).
The orders the subject of these Reasons made on 31 January 2020 were not orders where the practical difficulty or expense of the children spending time with or communicating with a parent was a relevant consideration.[68]
[68] Family Law Act 1975 (Cth) s 60CC(e).
In considering what orders were proper to be made on the relevant issue on 31 January 2020, I found that each of the parents had more than adequate capacity to provide for the needs of the children, including their emotional and intellectual needs.[69]
[69] Family Law Act 1975 (Cth) s 60CC(f)(i).
In relation to an issue to which these Reasons relate – a movement by a day at either end of the father’s weekend fortnightly time with the children – family violence is not a relevant issue,[70] except that the more changeovers that take place attended by one parent only, the less opportunity there is for any incidents occurring between the parents or between a parent and another person on behalf of a parent that may come within the definition of family violence in section 4AB of the Act.[71]
[70] Family Law Act 1975 (Cth) s 60CC(j).
[71] Family Law Act 1975 (Cth) s 4AB.
Keeping the relevant primary and additional considerations in section 60CC in mind, I found on 31 January 2020 that it was proper and in the best interests of the children to make an order providing that:
a)Changeovers occur at the children’s school and on non-school days at Suburb D Supermarket inside the K Street entrance (where it was made plain in the contravention proceedings changeovers had been occurring);
b)The existing requirement that the parents personally attend all changeovers be removed;
c)The existing orders in relation to the time the father spends with the children during school term time be vacated, which due to the way such order was framed also involved vacating the existing interim live-with order in favour of the mother;
d)The children live with the mother, as a separate and fresh order; and
e)That the father’s time with the children on a fortnightly basis be:
i)In week 1, as it had been, from the conclusion of school or 3:00pm if not a school day on Thursday, until the commencement of school or 9:00am if not a school day on Friday; and
ii)In week 2, from the conclusion of school or 3:00pm if not a school day on Friday, until the commencement of school or 9:00am if not a school day on the following Monday.
In view of the contravention proceedings and the history of litigation between the parties illustrated by the number of applications in the Court file, I found that it was also proper and in the children’s best interests to set the dates on which the father’s time with the children for week 1 and week 2 would commence.
In making the orders, I was conscious that the actual time the father would be spending with the children had been reduced in week 1. Though the time started at about 3:00pm instead of 5:30pm, it finished at about 9:00am on the Friday morning rather than 7:00pm on Friday evening. It was also less in week 2 because previously it had finished at 6:00pm on the last day (Sunday) and would now finish at about 9:00am on the last day (Monday).
Irrespective of this, I found that the same was proper in the best interests of the children because they would actually have more face-to-face time with their father, in consequence of part of the Friday time in each week under the previous orders having been spent by the children at school.
Parental responsibility
This matter had had two previous interim hearings. No order providing for the parents to have equal shared parental responsibility had been made. The father’s applications in a case that had gone to hearing previously each sought an order that the parties have equal shared parental responsibility. The mother’s Response sought an interim order that she have sole responsibility for the children.
Section 61DA of the Act, in relation to the presumption that it is in the best interest of the children for their parents to have equal shared parental responsibility, was in the Act at the time of each of the previous interim hearings. It is therefore inherent that in making orders on those occasions the court found that it was not appropriate in the circumstances for the presumption to be applied when making the interim parenting orders.
No application was made by either parent or by the Independent Children’s Lawyer for an order relating to parental responsibility on 31 January 2020. As I made parenting orders on that day, I was required under section 61DA to apply the presumption unless:
a)There was a basis on which the presumption did not apply;[72]
b)The presumption was rebutted by evidence that satisfied me that it would not be in the best interests of the children to make an order that their parents have equal shared parental responsibility for them;[73] or
c)I considered that it was not appropriate in the circumstances for the presumption to be applied when making the order.[74]
[72] Family Law Act 1975 (Cth) s 61DA(2).
[73] Family Law Act 1975 (Cth) s 61DA(4).
[74] Family Law Act 1975 (Cth) s 61DA(3).
At the time, I considered the matter and found it was not appropriate in the circumstances to apply the presumption. I considered that issue of parental responsibility was, in this particular matter, better dealt with on final hearing. I was aware of paragraph 124 of the Family Report:
Given the breakdown in communication between the father and mother, it is unlikely that equal and shared parenting responsibility can occur, both in decision-making for the children and regarding the amount of time the children spend with each parent. Both X and Y appear to be benefiting from the current arrangements with their mother being their primary caregiver and the children seeing their father
fivefour nights a fortnight.[75][75] Family Report prepared by Ms S dated 8 August 2019, [124] (original error and correction produced).
I found that it was not appropriate to make a specific order in relation to parental responsibility, and accordingly the circumstances provided in section 61C of the Act of each parent having parental responsibility continues.
As I found in the circumstances it was not appropriate to make order that the children’s parents have equal shared parental responsibility, there was no need for me to consider the matters set out in section 65DAA of the Act.
I apologise to the parties for the delay between making the orders on 31 January 2020 and my publishing these Reasons. It is not good judicial practice for a judge at first instance to make orders and publish reasons later, particularly when those Reasons are published some months after the making of the orders.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 13 May 2020
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