Windsor and Kava (No.2)
[2012] FMCAfam 1370
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WINDSOR & KAVA (No.2) | [2012] FMCAfam 1370 |
| FAMILY LAW – Parenting – both parents seeking further and different parenting orders immediately after judgment delivered and parenting orders made after a six day hearing – no new matter raised – Rice & Asplund – summary dismissal. |
| Windsor & Kava [2012] FMCAfam 1221 Port of Melbourne Authority & Anshun [1981] HCA 45, (1981) 147 CLR 598 Rice & Asplund (1978) 6 Fam LR570, (1979) FLC 90-725 |
| Applicant: | MS WINDSOR |
| Respondent: | MR KAVA |
| File Number: | PAC 3320 of 2010 |
| Judgment of: | Halligan FM |
| Hearing date: | 4 December 2012 |
| Date of Last Submission: | 4 December 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 4 December 2012 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Solicitors for the Respondent: | In Person |
ORDERS
The mother’s amended initiating application filed on 30 October 2012, the father’s further amended response filed on 30 November 2012 and the father’s application in a case filed on 30 November 2012 are summarily dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Windsor & Kava (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3320 of 2010
| MS WINDSOR |
Applicant
And
| MR KAVA |
Respondent
REASONS FOR JUDGMENT
Before the court today is an amended initiating application by the mother filed on 30 October this year. She initially filed the original application on 25 October. That was 14 days after I delivered judgment following a six day hearing in relation to parenting matters concerning the parties’ two young sons (see Windsor & Kava [2012] FMCAfam 1221). The hearing dates were the 17 and 18 November 2011 and 2, 3, 10 and 11 October 2012. To say that was a full hearing of the matter would be an understatement.
The only witnesses apart from the authors of the family reports were each of the parents. There was an independent children’s lawyer involved. Each of the parties were represented for part of the time and were unrepresented for part of the time during that hearing. Be that as it may, as I say, after fully hearing this matter, I made parenting orders and I delivered judgment on 11 October and two weeks later the mother filed a fresh parenting application.
As her application was originally framed, she sought an order to restrain the parties from taking the children out of Australia and that the children’s names be placed on the watch list. That is in identical terms to part of the orders that she, for the first time, articulated on
11 October, day six of the previous hearing, at the commencement of final submissions.
I dealt with the matter in the judgment that I delivered on that occasion (at [53] – [55]) and acknowledged that the mother had sought this order in her Exhibit G at the close of the evidence and that this was the first time that the mother had sought such an order. I refused to entertain the mother’s application so later in the proceedings because there had been an issue between the parties about overseas travel at all relevant times in these proceedings, but nobody had sought any orders about it, and in my view, at that point, to have allowed an application in the terms the mother was then seeking to present would have necessitated recalling both the parties and having further cross-examination and there was no satisfactory explanation given as to why the mother had not raised the issue in a timely fashion. In any event, it seemed to be common ground that the children’s names were already on the Watch List, albeit apparently not pursuant to a court order.
The mother now brings exactly the same application, with no explanation as to why it was not raised earlier. In my view, there is, consistent with Port of Melbourne Authority & Anshun ([1981] HCA 45, (1981) 147 CLR 598, per Giobbs CJ, Mason and Aiken JJ at [37]), an issue that the mother must address, albeit, that this is in proceedings in which the children’s best interests are the paramount consideration and there may well be an argument that the strict rigour of
Anshun estoppel may not fully apply.
But nonetheless, consistent with Rice & Asplund (1978) 6 Fam LR570, (1979) FLC 90-725, it is not the case that parties can serially return to Court and seek to ventilate and argue exactly the same issues. I gave reasons why I would not entertain the application on 11 October and I am not satisfied that the mother has demonstrated any reason why the Court should do so now.
But she has filed an amended application, in which she has not raised additional orders that she would seek. She sought orders in relation to the surrender of passports. As I have said, issues of overseas travel were live between these parties at all relevant times throughout the trial and nobody sought any order about the surrender of passports. In my view, the time to do that was during the six day trial.
The mother further sought to change the changeover arrangements in relation to the children, on the basis that it was suggested, apparently, that there would be some closing of the younger child’s current childcare centre. She sought to move it to a contact centre at Parramatta. In my view, that is entirely unnecessary. I have made orders which facilitate changeovers. They are to be either at the elder child’s school, and if not, they are to be at a designated McDonald’s. Whether the younger child’s childcare centre may close or not is irrelevant to those arrangements. It is not a new matter and under Rice & Asplund there is no new issue.
The mother also, in the amended application, sought an order that she be allowed to speak to the children on the phone when the children are in the care of the father. She at the bar table has now indicated that that issue has been resolved and she does not press that order. But again, for completeness, I need to say that this was always a matter that if the mother wished to press it, she had six days in which to press it in the hearing that I determined on 11 October and she chose not to. If she overlooked it, she overlooked it. It is not a new matter.
For those reasons, I am satisfied that the mother’s application should be summarily dismissed as lacking any prospects of success.
The father filed a response, then an amended, and ultimately a further amended response. The further amended response was filed on 30 November. He filed an application in a case on the same day. The orders sought in both documents are effectively the same. What the father seeks, apart from the dismissal of the mother’s amended application, is a removal of the children’s names from the airport watch list.
This was addressed in the final hearing. The father had sought an order to that effect and further had sought orders to enable each parent to take the children to any funeral, wake or the like for any extended family member, including overseas, and I refused to make that order. I have therefore determined the issue.
The father further seeks an order permitting him to take the children to visit the children’s grandmother in (country omitted) for two weeks in January 2013 and for the second half of all school holidays. Thus he seeks a serial overseas travel order that would occur every school holidays.
The paternal grandmother’s health was raised as an issue in these proceedings that I heard and determined on 11 October, yet the father sought no order permitting him to take the children to visit an ill relative overseas. He only sought an order to take the children to any funeral or wake of a deceased relative overseas. Again, this is a matter which could and should have been raised, pressed and dealt with in the hearing that I determined on 11 October after six days of hearing, if the party wished to raise it.
This is not a new matter. I do not accept that the father’s suggestion that now his mother is gravely ill with a condition which pre-dated the hearing that I determined on 11 October 2012 raises a new matter.
He further seeks an order - and I do not seek to be offensive to the father when I quote him verbatim as I note that English is not the first language for either party-
The parent do not say negative words about the other parent. Do not said negative to other person in front of (the children).
I have already made such an order. The orders that I pronounced on
11 October 2012 provides at paragraph 15:
Restrain each party from denigrating the other party or members of the other party’s family in the presence or hearing of the children and shall ensure no other person does so.
But the restraint goes further. It restrains both parties from discussing the proceedings with or in the presence or hearing of the children and from showing the children any documents filed in or prepared for the purpose of the proceedings and ensuring no other person does so, and further restrains them from passing information or messages through the children to the other parent. Thus, this matter has been addressed and is already covered by a Court order.
The father then seeks to change the orders that I made on 11 October in various respects.
First, he seeks an equal shared parental responsibility order. That was precisely the first issue as to the parenting orders that I heard and determined on 11 October. And for reasons that I set out, I was satisfied that because of the level of hostility and the lack of communication between these parents, they are not capable of exercising equal shared parental responsibility. This issue has already been determined. If the father is dissatisfied with the result, his remedy is not to again seek exactly the same order that I have already refused to make. If he feels I have made an appellable error, then he has the right of appeal to the Full Court of the Family Court of Australia. After this period of time, he would need to seek an extension of time, if he wishes to appeal to that Court.
The father then seeks a further order in relation to moving the changeover point, if the mother is 15 minutes late, to the father’s home. I made it plain, for the reasons that I gave in my judgment, that I will not have changeovers occurring at either parent’s home. This is matter already determined and dealt with.
The father, then at 5(c) seeks something which is unintelligible and I do not know what he seeks.
The father then, at 5(d), proposes that the parent’s have an hourly, monthly meeting on Wednesday at 12 noon, to discuss the health and education of the children. For the precise reasons that these parents cannot civilly communicate and because their conflict is so high I refused to make an equal shared parental responsibility order. The father had an opportunity to put what he now seeks to me in the hearing that concluded on 11 October, but I have to say if he had, for the reasons given in relation to parental responsibility, I would not have made it.
Be that as it may, he had an opportunity to put this proposal to the court and he chose not to do so. In my view this is not a new matter.
He then seeks an order that from 8 February 2013 his time with the children be changed. I have determined the time the children are to spend with the father in the orders that I made on 11 October and there is no evidence of any change of circumstances sufficient to justify that being revisited.
Similarly with paragraph 5(f), he seeks that his time commence from Thursday at 3 pm and continue until the following Monday at 9 am or Tuesday if a public holiday. For reasons that I gave in the judgment that I delivered on 11 October, I declined the proposal of the Independent Children’s Lawyer that the father’s time eventually commence on Thursday. In particular, I was concerned that these parents’ inability to civilly communicate and cooperate was such that I was not prepared to have these children with the father on any school day because I was concerned that there was a real risk that one of the children would need something that was in the home of the other parent and these parents would simply be incapable of civilly communicating and making arrangements to address the issue for the child without placing the child in the middle of the parental conflict.
I dealt with this issue fully in the hearing and in the reasons I gave. It is not a new matter.
Similarly with 5(g).
At 5(h), the father seeks to change the telephone communication to Skype. He had an opportunity to put that to me at the trial. The matter has been determined by the orders that I made on 11 October.
Finally, the father seeks an order that the parents always put the children in a proper car seat child restraint. That is the law of the land. It is not a new matter.
There is nothing raised that would possibly justify the court reopening this matter that was so recently determined after such a lengthy and full hearing. I therefore propose to summarily dismiss both the mother’s amended application and the father’s further amended response and his application in a case.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Halligan FM
Date: 13 December 2012
0
3
0