Walden & Cooper
[2020] FamCA 104
•25 February 2020
FAMILY COURT OF AUSTRALIA
| WALDEN & COOPER | [2020] FamCA 104 |
| FAMILY LAW – CHILDREN – Rice & Asplund threshold issue – Where final parenting orders were made in August 2018 – Where the father seeks to re-contest parenting orders on the basis of changed circumstances – Where the mother denied any material change of circumstances and applied to have the father’s application dismissed – Where the father seeks greater flexibility due to the uncertainty of his monthly work roster – Where the father asserted the requisite change of circumstances is evident from the current orders not being implemented in the manner expected or intended – Where there has been no change to the way in which the father’s work rosters are compiled – Where the dispute over whether predictability or flexibility should define the children’s time with the father was squarely confronted at the original hearing – Concluded that the children are spending time with the father as expected under the current orders – Concluded the father failed to demonstrate any sufficient material change in circumstances to warrant revision of the existing orders – Ordered the father’s application be dismissed. |
| Family Law Act 1975 (Cth) s 65D |
| Langmeil & Grange [2013] FamCAFC 31 Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150 Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128 Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84 Searson & Searson (2017) FLC 93-788; [2017] FamCAFC 119 SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16 Walden & Cooper [2018] FamCA 595 |
| APPLICANT: | Mr Walden |
| RESPONDENT: | Ms Cooper |
| FILE NUMBER: | SYC | 5366 | of | 2017 |
| DATE DELIVERED: | 25 February 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 10 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lloyd SC |
| SOLICITOR FOR THE APPLICANT: | Pigdon Norgate Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Levick |
| SOLICITOR FOR THE RESPONDENT: | Boyd Olsen Lawyers |
Orders
The applicant father’s application for Orders 1 to 10 inclusive, sought under Part VII of the Family Law Act 1975 (Cth), in the Further Further Amended Initiating Application [sic] filed on 30 January 2020 is dismissed.
Costs are reserved for 28 days.
Any costs application referred to in Orders 3 or 11 made on 23 October 2019 is reserved for 28 days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walden & Cooper has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: SYC 5366 of 2017
| Mr Walden |
Applicant
And
| Ms Cooper |
Respondent
REASONS FOR JUDGMENT
Introduction
On 6 August 2018, final parenting orders were made between the applicant father and respondent mother under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of their two children.
On 20 September 2019, the father re-commenced proceedings under Part VII of the Act by amending his still pending Application for property settlement orders under Part VIII of the Act, seeking to re-contest some of the parenting orders on the basis of changed circumstances. The mother denied any material change of circumstances and applied to have the father’s fresh application under Part VII of the Act dismissed, which application was heard separately from the parties’ pending property settlement dispute listed for trial before Cleary J.
For the reasons which follow, the father’s fresh application brought under Part VII of the Act should be dismissed for his failure to demonstrate any sufficient material change in circumstances to warrant revision of the existing orders.
Background
The final parenting orders made in August 2018 flowed from a hearing between the parties in July 2018.
The father was then and is still now working in the transport industry. It was not then, nor is it now, in dispute that his work roster is fixed for four-week periods and released to him little more than a week in advance of each new roster’s commencement date. He has no certainty about the contents of each roster. No one roster replicates the one before.
One significant controversy at trial in July 2018 was whether the mother and children should flexibly accommodate the father’s changing work commitments under the rosters issued to him from month to month. The father wanted the freedom to notify the mother each new roster cycle about when his work shifts would enable him to have the children, whereas the mother wanted certainty in the orders. The orders made in August 2018 prescribed certainty in respect of school terms, as the mother desired, but introduced flexibility for school holidays, as the father desired.
The children live with the mother in Region D and the father lives in Sydney. It is common ground that a drive of some two hours’ duration separates their homes. Relevantly, and in summary, the August 2018 orders provided for:
(a)the children to spend time with the father each alternate weekend in school terms from 5.00 pm on Friday until 5.00 pm on Sunday (Order 4(c)(i));
(b)the children to spend time with the father for no more than seven consecutive days in the Autumn, Winter and Spring school holidays, subject to the father giving the mother 60 days’ notice of the dates of which he wishes to avail (Order 4(c)(ii));
(c)the children to spend time with the father for no more than 18 consecutive days in the Summer school holidays, subject to the father giving the mother 60 days’ notice of the dates of which he wishes to avail (Order 4(c)(iii));
(d)the children to share their time with the parties around Christmas Day and on Mother’s Day and Father’s Day (Order 5);
(e)the parties to each be able to take the children on international holidays, provided the holidays fall within the time the children ordinarily spend with the parties (Order 6);
(f)changeovers of the children to occur at a public restaurant chain – one in Region D near the mother and one in northern Sydney near the father (Order 7);
(g)the children to speak with each party twice each week when in the care of the other parent (Order 8);
(h)both parties’ involvement in any medical emergency affecting the children (Order 11); and
(i)the father’s permission to attend the children’s schools when parents are ordinarily invited to attend (Order 15).
In his new application, the father proposes that each of those orders be discharged and replaced by fresh orders, but the proposed changes were minor in many respects and hinged almost entirely upon his perception that the current orders are not working well due to the vagaries of his work rosters.
Legal principles
The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund (1979) FLC 90-725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93-363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“Marsden v Winch”); Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).
The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83] (“Miller & Harrington”)) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).
In order to determine the existence and materiality of the asserted change in circumstances, consideration should be given to (Marsden v Winch at [50]):
(a)the past circumstances, including the reasons for the original decision and the evidence upon which it was based;
(b)whether there is a likelihood of the orders being varied in a significant way as a result of a new hearing; and
(c)if there is such a likelihood, whether the asserted need for variation of the orders outweighs the potential detriment to the child or children which the fresh litigation will cause.
The parties did not dispute the content of the applicable legal principles; only the manner in which the principles should be applied in this instance.
The parties agreed the mother’s Rice & Asplund application to dismiss the father’s revision application should, in this instance, be heard as a preliminary enquiry. Each party was permitted to cross-examine the other, though in truth there was very little factual dispute of any significance between them. The dispute is determined by accepting the father’s evidence at its highest (see SPS & PLS at [81]; Searson & Searson (2017) FLC 93-788 at [11]).
The evidence
The father relied upon:
(a)his affidavit filed on 20 September 2019 (but only paragraphs 1 to 77 inclusive), the annexures to which were separately tendered;[1]
(b)his affidavit filed on 22 January 2020, the annexures to which were separately tendered;[2] and
(c)a marked calendar, referred to in the concluding paragraphs of his second affidavit.[3]
[1] Exhibit F1
[2] Exhibit F2
[3] Exhibit F3
The mother relied upon:
(a)her affidavit filed on 4 February 2020, the annexure to which was separately tendered;[4] and
(b)the transcript of the hearing conducted in July 2018.[5]
Proposed fresh orders
[4] Exhibit M1
[5] Exhibit M2
Time during school terms
At the hearing in July 2018, one of the few important issues was identified as (Walden & Cooper [2018] FamCA 595 at [12(b)]):
…the extent to which the regime [for the children to spend time with the father] should be sufficiently flexible to accommodate the father’s work commitments.
In dealing with that issue, I observed in the reasons for judgment:
9. The father abandoned the orders set out in his Amended Initiating Application filed on 13 November 2017, though his final proposal was not much different. He sought and was granted leave to apply for the orders set out in the minute of orders he tendered at the start of the trial, which he amended in minor respects during final submissions. Essentially, he wanted the parties to share parental responsibility for the children, the children to live with the mother, and the children to spend time with him at the different times he designates from month-to-month to suit his changing work roster. His work roster is fixed on a monthly basis, under which his work commitments regularly vary, and he expected the mother and child to flexibly adapt to his roster on relatively short notice.
…
64. The father did not want to lock-in the routine of alternate weekends during school terms because he could not be sure his work roster would always permit him to be free of work on the designated weekends. Instead, he proposed a regime under which, on a month-to-month basis, he would learn of his work commitments for the month ahead and then tailor the children’s visits with him around his shifts. He would decide when the visits occur and the mother and children would have to live with his decisions. The proposal only needs to be stated to appreciate its unsuitability. The mother and children should not be bound by the father’s desire to give primacy to his career over the reliability of routine. The father had no option but to concede in cross-examination that the children would benefit from a stable and predictable routine. The single expert logically said the time spent by the children with the father should be “regular and consistent”. Over the past 12 months, the father has disliked being dictated to by the mother, so why he thought he should be able to dictate terms to her over the next 15 years until the youngest child attains her majority was a question he could not sensibly answer.
65. The father also proposed an order which would allow him to unilaterally nominate some extra time the children should spend with him each month around his work roster, which is rejected for the same reason of unpredictability.
66. The father has been subject to the same work roster system over the last 12 months and he has still been able to see the children every second weekend, so it is probable he will be able to continue keeping some time free each alternate weekend to spend with the children. True it is he may not be able to always keep the whole of each alternate weekend free of work commitments, but it could hardly be doubted the mother would accommodate the need for the children to spend less than the full measure of time with him on those particular weekends he is unable to keep completely free of work. Most probably, the father will be able to manage to see the children for most of every alternate weekend for most of the time. Despite some prevarication, his counsel accepted that finding was open on the available evidence.
(bold emphasis added; italicised emphasis is original)
For those reasons, the August 2018 orders specifically prescribed the weekend time the children can spend with the father. To avoid further parental conflict, no flexibility was countenanced, though it was expected the mother would allow the children to spend shortened time with the father on the weekends when he does some work (at [66]). That expectation arose from concessions made by the parties in final submissions, as the following excerpt of transcript demonstrates:[6]
HIS HONOUR: …if the father accepts, on the balance of probabilities, he could see the children for either the whole or the part of a weekend every alternate weekend, on the weekends where he unexpectedly is caught short and has [to travel] on the Saturday night and can’t keep them on the Sunday, does he really entertain any realistic expectation the mother is not going to accept them back a day early?
[COUNSEL FOR THE FATHER]: I wouldn’t think so, but I am going to check that.
HIS HONOUR: Well, that’s the answer, isn’t it?
[COUNSEL FOR THE MOTHER]: I can certainly indicate from our position there’s no difficulty with that.
[COUNSEL FOR THE FATHER]: The answer is yes.
HIS HONOUR: Well then – okay. Thanks
(Transcript, 4 July 2018, p.142 line 5 to line 21)
[6] Exhibit M2, page 142
When cross-examined in this hearing, the mother said she has accommodated the father’s requests to have the children for shortened periods on weekends when they are due to spend the entire weekend with him, thereby adhering to her promise and fulfilling the expectation arising from the hearing in July 2018. The father did not contradict or challenge such evidence.
Now, as then, the father envisages the children will only spend time with him during school terms on the weekends, because the distance between the parties’ homes precludes the children spending mid-week time with him during school terms. But now, as then, the father wants to pick the weekends that the children spend with him around his work roster. In that respect, nothing has changed.
The only change to which the father pointed was his employer’s disinclination to continue giving him favourable treatment when compiling the rosters, as occurred for about six months after the August 2018 orders were first made.[7] The father admitted in cross-examination that the process for setting his work rosters is currently the same as it was before the August 2018 orders were made, notwithstanding the six months of favourable treatment he received from his employer after the orders were made. The dispute over whether predictability or flexibility should define the time the children spend with the father was squarely confronted at the original hearing in July 2018[8] and was quelled by the orders made in August 2018. The father knows that is so, because he told his employer so afterwards,[9] and he admitted in cross-examination at this hearing that the issue was previously argued but “[he] didn’t agree with it”.
[7] Father’s affidavit 20/9/19, para 48
[8] Exhibit M2, pages 122, 139, 140, 141, 142, 143
[9] Exhibit F1, page 38
At the time of the hearing in July 2018, it was expressly contemplated how the father’s retirement from work in the transport industry, when he is no longer subject to the uncertainty of work rosters, might well amount to a change of circumstances warranting revision of the parenting orders.[10] But the father still works in the transport industry.
[10] Exhibit M2, page 138
Notwithstanding the absence of evidence to prove any change in circumstances in the compilation of his work rosters, the father sought to instead argue that the requisite change of circumstances is evident from the August 2018 orders not being implemented in the manner it was expected they would be. The submission is rejected. In the face of the parties’ conflict, orders were made requiring the parties to reasonably ensure the children spend time with the father between prescribed hours of prescribed weekends. The mother’s obligation is to present the children in expectation the father will collect them, unless he warns her he cannot. She can do no more. It was anticipated at the hearing in July 2018 that the father might not be able to avail of the whole of every second weekend, due to his work commitments, just as he contended. The eventuality of what was anticipated, with the children not seeing as much of the father as the orders permit, does not mean circumstances have changed because, as was foreseen (at [66]), the father has managed to see the children “for most of every alternate weekend for most of the time”.
The husband bids for the days in upcoming rosters which he either does or does not wish to work. He is able to make a standing bid to not work on the alternate weekends the children are due to spend with him but, because not all bids can be accommodated, the father does not have all his bids met. In his estimation, he gets the free weekends for which he bids about 30 per cent of the time. He finds that in any one roster cycle, he will mostly be rostered to work for one day on one of the two weekends the children are due to spend time with him.[11] To overcome any clash between his commitments to work and to the children, the father has hitherto taken sick leave on the work days that clash with the children’s visits.[12] During 2019, the father took 12 sick days for that purpose, which amounts to about one sick day each month.[13]
[11] Father’s affidavit 20/9/19, para 47
[12] Father’s affidavit 20/9/19, para 51
[13] Father’s affidavit 20/9/19, para 52; Father’s affidavit 22/1/20, para 8
The father admits that, on average, without taking sick leave, the children lose about one day of one weekend each month they are due to spend time with him during school terms. On the weekends the children are due to spend with him, but he is rostered to work on either the Saturday or the Sunday, no reasonable explanation was advanced as to why he could not avail himself of the remainder of the weekend. He simply said in cross-examination he did not think it would be fair to the children for them to only spend truncated weekend time with him, even though the mother said she has accommodated his past requests to have the children for only part of some weekends.
The father submits, and I accept, he cannot continue to indefinitely claim sick leave when he is not genuinely sick. That being so, the children might only see him for part of one weekend each month, but they could still spend time with him for the whole of the second weekend each month.
Despite the absence of evidence to prove any change in circumstances with respect to his work rosters and the evidence that the children (as was expected might occur) will not spend time with him for the whole of every alternate weekend (unless he takes sick leave), the father wants to change Order 4(c)(i) in two respects by:
(a)expanding the alternate weekend time so it commences at 4.30 pm instead of 5.00 pm on Fridays and ends at 5.30 pm instead of 5.00 pm on Sundays; and
(b)altering the existing regime of regular alternating weekends to a regime under which he can change the designated weekends to suit his work roster on only short notice to the mother, the duration of which he deposed should be seven days,[14] but actually proposed should be 14 days.[15]
[14] Father’s affidavit 20/9/19, para 62
[15] Further Further Amended Initiating Application filed 30/1/20, Order 3.2
The first proposed change has nothing at all to do with the father’s work rosters, so there is no basis for it to be re-considered.
The second proposed change, as the mother submitted, amounts to no more than an attempt to review the original orders because the father is dissatisfied with them. As can be seen, the situation now is really no different from what is was at the time of hearing in July 2018. The children’s potential loss of the father’s company for around 12 days per year (if the father chooses not to take sick leave or some other form of leave on those days) was foreseen at the hearing in July 2018 and does not warrant revision of the existing orders by way of a new trial, particularly when the father voluntarily surrenders other days the children are due to spend with him under the existing orders so he can visit his new wife and child in Country H.[16]
[16] Mother’s affidavit paras 16-22, 33-35
Time during school holidays
Unlike the current inflexibility of the children’s designated weekend visits with the father during school terms, the August 2018 orders did intentionally build flexibility into the arrangements during the school holidays to accommodate the father’s work commitments.
In the reasons for judgment, I observed:
68. The block time spent by the children with the father in school holidays will commence in about April 2019 and be confined to periods of one week. Multiple weeks in the Summer school holidays will not start until December 2019. The single expert’s suggestion that it might be best to delay the youngest child spending more than one week at a time with the father until she starts school (which may not be until February 2021) is rejected as unduly cautious. The contact times within the school holidays cannot be inflexible because the father only has six weeks holiday each year and he may not be able to always ensure his holidays fall in school holiday periods. The children should spend approximately half of the school holidays with him, but that will depend upon his availability. The children cannot stay with the father if he is working because he has no-one else to care for them in his absence. The father will need to give the mother about two months’ notice of the school holiday periods he can manage with the children so she has time to make her own arrangements.
(emphasis added)
Consequently, the orders provide for the children to spend approximately half of each school holiday period with the father, but on two conditions: first, the days they spend with him must be consecutive to avoid the fragmentation of the holidays so the children’s vacation time with the mother will not be interrupted, and secondly, the father giving the mother 60 days’ notice of the days he wants the children with him so the mother has some certainty to plan her own vacations with them.
The father wants to change Orders 4(c)(ii) and 4(c)(iii) in four ways by:
(a)expanding the visits in the Autumn, Winter and Spring school holidays by only one day from 7 to 8 days;
(b)expanding the visits in the Summer school holidays by only 1.5 days from 18 to 19.5 days;
(c)allowing the days in school holiday periods to be spent by the children with him in two tranches instead of consecutively; and
(d)reducing the notice he needs to give to the mother of the precise days he wants the children to spend time with him during school holiday periods from 60 days to only seven days.
The first two proposed changes have nothing at all to do with the father’s work rosters, so there is no basis for them to be re-considered.
As for the third proposed change, the father deposed that he “understood” the spirit of Orders 4(c)(ii) and 4(c)(iii) was that “each parent spends half of each school term holiday period” with the children.[17] The father’s presumption was mistaken because, as was observed in the reasons for judgment delivered at that time (at [68]), the children’s time with the father during school holidays was dependent upon his availability. It was foreseen that he may not always be able to synchronise his work holidays with the school holidays. He only has six weeks of annual leave and the children have about 12 weeks of school holidays each year. Even if the father can spread his entire annual leave across the children’s Summer, Autumn, Winter and Spring school holidays, it is unlikely he can use all of the days in the school holidays that are available to him under the existing orders. Order 4(c) allows for the children and the father to spend time together for up to a total of 39 days in school holidays, at the father’s election, which total he might not be able to exhaust by using only annual leave.
[17] Father’s affidavit 20/9/19, para 55
In December each year, the father bids online for his holidays in the following calendar year. Because others bid for leave during school holidays, not all of the father’s bids are satisfied,[18] but he did successfully bid for a week’s leave in the 2019 Winter school holidays, which the children spent with him.[19] He did not say whether he bid for annual leave in either the 2019 Autumn, Spring or Summer school holidays. Self-evidently, when the father exhausts his annual leave, the opportunity for the children to spend consecutive days with him during their school holidays is then dependent upon gaps in his work roster, provided he gives the mother sufficient notice.[20] The existing orders allow the children to spend “a period of no more than” a capped number of consecutive days in each school holiday period, so the father can elect to see them for less than the maximum in each holiday period.
[18] Father’s affidavit 20/9/19, para 61
[19] Father’s affidavit 20/9/19, para 60
[20] Father’s affidavit 20/9/19, paras 56, 59
As for the fourth proposed change, it is only maintained as important if the father is first able to successfully change the existing orders to enable him to see the children for non-consecutive days in the school holidays, interspersed with his work shifts. In that way he would not need to rely upon annual leave to see the children in school holidays and could choose days around his regular work roster but, since he only gets 7-10 days’ notice of his monthly rosters, the shorter period of notice to the mother would be necessary. Again, this proposed change suffers from an absence of proof of any changed circumstances.
Time on special occasions
The father wants to retain Order 5 in its current form, in so far as it relates to the Christmas period, but supplement it by:
(a)expanding Mother’s Day and Father’s Day arrangements from the current period (10.00 am to 5.00 pm) to a longer period (9.00 am to 6.00 pm); and
(b)allowing the children to spend time with him from 9.00 am until 7.00 pm on each of the parents’ and children’s birthdays (if they are not school days).
Neither proposed change has anything at all to do with the father’s work rosters, so there is no basis for them to be re-considered.
Changeovers
Order 7 presently requires the parties to exchange the children at a restaurant in B Town at the commencement of the children’s visits with the father and to exchange them at a restaurant in Suburb C at the conclusion of such visits.
The father wants to retain the B Town collection venue, but change the return venue from Suburb C to Suburb G.
Significantly, the parties live in the same homes in which they lived during the hearing conducted in July 2018. At that time, the father sought use of a changeover venue on the “[side of the] Highway”,[21] which is even further away from his home than the Suburb C venue. There was no evidence of any change which would warrant re-consideration of a different changeover venue at Suburb G. The father simply deposed how he now wanted to use a venue which is closer to his home.[22] The mother opposes any change, so there is no scope to amend the order consensually.
[21] Amended Initiating Application filed 13/11/17, Order 20; Exhibit M2, page 149
[22] Father’s affidavit 20/9/19, paras 74-77
Telephone communication
The children’s telephone communication with the parties was a contentious issue at the hearing in July 2018 and was the subject of debate with counsel for the Independent Children’s Lawyer,[23] the father,[24] and the mother.[25] They implicitly accepted the communication orders should be prescriptive to abate the parties’ conflict, which was caused, at least in part, by the unpredictable times at which the father called the children.
[23] Exhibit M2, page 125
[24] Exhibit M2, page 148
[25] Exhibit M2, page 158
In the reasons for judgment, I observed:
31. It was not submitted either party had failed to avail themselves of opportunities to involve themselves in the children’s lives. The father wants to participate in decisions affecting the children, wants to see more of them than the mother allows, and wants to communicate with them more frequently than the mother allows (s 60CC(3)(c)).
…
71. The father is dissatisfied with the operation of the interim orders for telephone communication between him and the children. He complained about it in his evidence-in-chief and in cross-examination. The mother was not so explicit, but her dissatisfaction with such regular telephone communication could easily be inferred from her evidence. Nevertheless, they both proposed final orders for telephone communication, as did the Independent Children’s Lawyer. Since such orders were uniformly sought they are made, but only in accordance with the mother’s proposal for fewer telephone calls each week – two instead of four.
(emphasis added)
Therefore, Order 8 prescribed certainty about when telephone calls could be made by the parties to the children, providing:
(8)The parties shall take all reasonable steps to ensure the children communicate privately by telephone with:
(a)The father each Tuesday and Thursday at 6.30 pm, when the children are living with the mother, for which purpose the father shall telephone the children on the telephone number provided to him by the mother and the mother shall ensure the children are able to receive the father’s calls on that number at that time.
(b)The mother each Tuesday and Thursday at 6.30 pm, when the children are spending time with the father, for which purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure the children are able to receive the mother’s calls on that number at that time.
(c)The parent with whom they are not then staying on the children’s birthdays at 6.30 pm, for which purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent and the parent with whom the children are staying shall ensure the children are able to receive the other parent’s calls on that number at that time.
The father now wants to change Order 8 by:
(a)increasing the frequency and duration of telephone calls each week under Orders 8(a) and 8(b) from two calls to three, which he could then make at any point during a window of 90 minutes duration on every occasion;
(b)specifying that his telephone calls on the children’s birthdays under Order 8(c) could be made by him at any time during a window of three hours duration; and
(c)making conditional provision for additional telephone communication on Christmas Day, Father’s Day, and the father’s birthday.
The father deposed how his work commitments sometimes prevent him from telephoning the children at 6.30 pm on the days designated for communication,[26] and further, the mother has refused his requests to instead telephone the children at his convenience.[27] Conflict has impaired the parties’ parental relationship since their separation, which was the very reason the August 2018 orders sought to introduce certainty into the arrangements surrounding the children. The father’s renewed attempt to now abandon certainty for flexibility, when he knows the parties have difficulty compromising with one another, is misconceived. If he is unable to telephone the children at 6.30 pm twice each week, as the existing orders allow, he is not in breach of the orders. The orders only oblige him to take reasonable steps to call the children at those times. If he is unable because of work commitments, he will not be acting unreasonably.
[26] Father’s affidavit 20/9/19, paras 65-67; Father’s affidavit 22/1/20, paras 10-11
[27] Father’s affidavit 20/9/19, paras 68-69
The father deposed he has not been able to telephone the children at prescribed times on approximately 40 occasions over the last 18 months,[28] which must inferentially mean he has been able to communicate with them on well over 100 other occasions in the same time period. Expanding the time frame within which the father is at liberty to telephone the children might increase the prospect of him being able to speak with them more often around his work commitments, but it could not completely cure the problem he perceives because he will inevitably be travelling on some occasions during the time frame he is permitted to call the children.
[28] Father’s affidavit 20/9/19, para 66; Father’s affidavit 22/1/20, para 10
The father’s proposal to expand the number of occasions upon which telephone communication can occur (while conditional upon him not being able to see the children personally on those days) has nothing to do with any change in circumstances.
If the father is concerned about the mother’s occasional breach of the telephone communication orders,[29] then his remedy is to bring a contravention application.
[29] Father’s affidavit 20/9/19, paras 70-72
International travel
Order 6 presently provides:
(6)Pursuant to s 65Y of the Family Law Act, the parties are each granted permission to take the children outside Australia for the purpose of holidays, provided such holidays fall within the periods when the children would be ordinarily living or spending time with the parties.
The father seeks to retain that order, but supplement it with orders to this effect:
5.2 Each party will hold one of the Children’s passports when the Children are not travelling and that party must ensure that the passport has at least 7 months’ validation prior to its expiry date; and
5.3Each party will make the Children’s passports available to the travelling party no later than 21 days prior to the travel.
The father’s application in that regard is misconceived for two reasons.
First, the proposed supplementary orders have nothing at all to do with the father’s work roster, so there is no basis for re-consideration of the existing order.
Secondly, the parties’ handling of the children’s passports to enable their international travel is an issue covered by the parties’ existing investiture with equal shared parental responsibility for the children. No additional orders are needed as a gloss on the parental responsibility order. If a dispute does arise over their exercise of parental responsibility in respect of the passports, it can then be decided as a discrete issue, but there was no evidence of any such past or present dispute.
Medical emergencies
In the former reasons for judgment, I observed:
72. An injunction requires the mother to provide the father with information about the children’s school, pre-school, day-care centre, doctors and all other medical providers so he can use his equal shared parental responsibility to recover information about the children after they moved to Region D in April 2017 and now, from this point on, remain abreast of information pertinent to them.
Accordingly, Order 11 was made in the following terms:
(11)Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
The father seeks to retain that order, but supplement it with orders to this effect:
8.2 Each party shall be at liberty to attend upon the children at hospital in the event the children or either one of them is hospitalised; and
8.3 In the event the Father is hospitalised for greater than three days, the Mother shall do all things to ensure the children are made available to visit the Father during the Father’s period of hospitalisation.
No change in circumstances warrants re-consideration of the existing order.
In any event, there is no need for proposed Order 8.2 because the parties have equal shared parental responsibility for the children and no other order restrains their attendance at any hospital.
The father adduced no evidence of any need for Order 8.3.
Attendance at school
In the former reasons for judgment, I observed:
70. The orders expressly permit the father to visit the children’s day-care centres, pre-schools, and schools on occasions when parents are ordinarily invited to attend. The mother agreed an order in those terms was appropriate.
Accordingly, Order 15 was made in the following terms:
(15)The father is at liberty to attend the children’s day-care centres, pre-schools, and schools for events to which parents of students are ordinarily invited.
The father now seeks to substitute for Order 15 an order in the following terms:
9. The Father is at liberty to attend the children’s day-care centres, pre-schools, and schools for events to which the parents of Children are ordinarily invited and the Children are not be removed [sic] from the school by one parent (save for sickness and/or emergencies) without the written consent of the other parent.
The proposal to graft an injunction on to the existing order is misconceived. It is not justified by any change of circumstances, nor was any evidence adduced or submission made about why it was required.
Conclusion and costs
The father failed to demonstrate any material change of circumstances, either individually or in aggregation, which would justify re-opening the former dispute between the parties under Part VII of the Act. In some instances, the amendments he proposed be made to the existing orders were not even premised on the change in circumstances he alleged but failed to prove. Having regard to the guidelines developed in the authorities which have already been quoted, the father’s fresh application must be dismissed.
The question of costs arising out of this hearing will be reserved for 28 days.
Other miscellaneous outstanding costs applications, previously adjourned to the hearing by orders made in October 2019, are also reserved for 28 days.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 25 February 2020.
Associate:
Date: 25 February 2020
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