Wright and Adams

[2012] FamCA 440

FAMILY COURT OF AUSTRALIA

WRIGHT & ADAMS [2012] FamCA 440

FAMILY LAW – CHILDREN – Contravention – Consequences of Contravention – where the mother contravened without reasonable excuse – whether the father should be given compensatory time with the children – whether overnight time should be compensation for contravention of an order providing for a 45 minute phone call – where the father is given a 45 minute phone call with the children as compensation – where the contravention is less serious – where any further contravention without reasonable excuse against primary parenting orders must be treated as a more serious contravention – where there is a variation of primary parenting orders – where the parents did differently interpret the previous parenting orders in respect of their responsibilities and obligations – where the primary parenting orders are altered so that the transition time is clear - where the primary parenting orders are altered so that there is less room for different interpretations and less room for conflict – where primary parenting orders are altered to minimise prospect of  further contraventions

Family Law Act 1975 (Cth) s 60CC, s 60I, s70NBA, s 70NEB, s70NFA, s70NFB

APPLICANT: Mr Wright

RESPONDENT: Ms Adams

FILE NUMBER: BRC 7255 of 2009

DATE DELIVERED: 8 June 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 3 May 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Black

New Way Lawyers

FOR THE RESPONDENT: Ms Adams

Orders

1. That by way of compensation for telephone communication between the children, L, born … September 1997, D, born … December 1999, J born … July 2001 and B born … August 2003 and the father, lost by reason of the mother’s proven contravention of previous orders without reasonable excuse, the children shall communicate with the father by telephone on one occasion, additional to those already provided for in those orders, for a 45 minute period between 6:00 pm and 7:00 pm on a night of the father’s choosing within one calendar month of the date of these orders, with the father to give the mother two day’s notice in writing of the particular additional night he chooses and with the telephone call otherwise to be made in accordance with the provisions of paragraph 22 (a) to (c) of the orders of 4 May 2011 as amended on 27 July 2011.   

2. That the recovery order made by paragraph 4 of FM Jarrett’s orders of 23 September 2011 is discharged.

3. That the orders of FM Jarrett of 4 May 2011 as amended on 27 July 2011 be varied by deleting paragraphs 3, 4, 5 and 6 and replacing them with the following paragraphs that shall operate from the date hereof:

   3.That the children live with the mother and the father on an equal shared care basis as follows:

   (i)with the father for the first half of all school holidays that commence in 2012 and in alternate years thereafter, and with the mother for the second half of all those school holidays;

   (ii)with the mother for the first half of all school holidays that commence in 2013 and in alternate years thereafter, and with the father for the second half of all those school holidays;

   (iii)week about during school term, living with each parent respectively from the time that school commences each Friday morning until the time that school commences the following Friday morning (or Thursday morning in the last week of term if the last day of school term is a Thursday);

   (iv)the week about arrangement during school term shall commence each new term with the children living with the father for the first week of school term in 2012 and alternate years thereafter, and with the mother for the first week of school term in 2013 and alternate years thereafter, and shall continue this way regardless of which parent the children lived with in the last week of the previous school term;

   (v)for the purposes of determining the half way point of the school holidays, the school holidays shall be deemed to commence at midnight at the end of the last day of the school term of the school that the youngest child attends, and to conclude at midnight at the beginning of the first day of the next school term of the school that the youngest child attends;

   (vi)notwithstanding the provision of (v) hereof, the children shall begin living with the parent who they will be with for the first half of school holidays at the commencement of school on the last day of school term before the holidays begin, and they shall transition to the care of the parent who they will be with for the second half of those school holidays at 9.00 am on the day on which the exact halfway point of the holidays calculated pursuant to (v) hereof falls, and if that happens to be midnight, then that shall be at 9.00 am on the day that begins with that particular midnight;

   (vii)notwithstanding the provisions of (i), (ii), (v) and (vi) hereof, the children shall transition from the care of the parent who they have spent the second half of the school holidays with to the care of the parent with whom they will be spending the first week of school term at 9.00 am on the Sunday before school term resumes.

   4.During school holidays, the children shall transition from one parent’s care to the other parent’s care in the car park at the Hungry Jacks Restaurant, Suburb G in the State of Queensland.

   5.The children’s transition from one parent’s care to the other parent’s care may be facilitated by the father and/or his current wife and the mother and/or her current husband.

   6.Each parent shall be responsible for making their own arrangements with the children for their transport to and from school during the time that the children are living with that parent pursuant to these Orders.

4. That the Orders of FM Jarrett of 4 May 2011, as amended on 27 July 2011, shall be further varied by adding the following paragraph at the end of those Orders, and this paragraph shall operate from the date hereof:

   34.That should the parties, despite genuine effort, not be able to reach agreement in respect of major long term issues (as that term is defined in s 4 of the Family Law Act (as amended) in relation to any of the children, then they should conscientiously engage in mediation arranged through a family relationship centre or an accredited family dispute resolution practitioner prior to the commencement of any proceedings in this court in respect of any such issues.

5. That there be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wright & Adams has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC7255/2009

Mr Wright

Applicant

And

Ms Adams

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 3 May 2012, I pronounced my findings and delivered my reasons in these contravention proceedings that were heard on 3 February 2012.

2. I determined that the respondent mother had, on 27 September 2011, contravened paragraph 22 of primary orders made by consent by FM Jarrett without reasonable excuse by failing to ensure that the children spoke by telephone to their father between 6:00 and 7:00 pm that night. I dismissed several other allegations of contravention without reasonable excuse.

3. I adjourned the matter to 22 May, 2012 to allow the parties to consider my decision and to make submissions on that day in respect of the consequences that should flow from my findings. I made it clear that I considered that there should also be some amendments made to the primary orders pursuant to the power conferred on the Court by s70NBA in the light of my findings in the contravention hearing and I invited submissions from the parties in respect of this issue as well.

the parties’ positions

1. For the applicant father, Mr Black, solicitor, conceded that the mother’s contravention without reasonable excuse, as found by me, could not be regarded as a more serious contravention and, therefore, is to be dealt with pursuant to Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth). He submitted that the father should be given compensatory time with the children for the telephone communication that he missed and that it should be for one overnight period.

2. The mother submitted that the father be compensated for the loss of the telephone communication with the children by either:

   (a)one 45 minute phone call to take place on any night of his choosing between 6:00 pm and 7:00 pm; or

   (b)one 90 minute phone call to take place on any Sunday or Wednesday night between 6:00 pm and 7:00 pm of the father’s choosing; or

   (c)by any other telephone contact that the Court considers appropriate.

the consequences of the contravention finding

1. I consider that the appropriate outcome in the circumstances of this case is for the father to have compensatory telephone communication with the children pursuant to s 70NEB (1)(b) and (4) of the Family Law Act 1975 (Cth).  I do not, with respect, accept the submission made for the father that making an order for the children to spend overnight time with him in lieu of the 45 minute telephone conversation that he missed is proportionate to the loss, particularly given they already spend week about time in the care of the father, or necessary as some form of punitive sanction on the mother.

2. By my finding that the mother contravened the primary order without reasonable excuse and an order being made pursuant to s70NEB, the mother’s own actions have the consequence that any further contravention without reasonable excuse by her found to occur against primary parenting orders must be treated as a more serious contravention pursuant to s70NFA(3) and must attract one of the outcomes mandated in s70NFB. That in itself is a fairly serious consequence of the outcome of these contravention proceedings and the making of an order providing for compensatory telephone communication to occur. The mother must now be aware that proven future contraventions without reasonable excuse will mandatorily attract more serious consequences.

3. I will order that the children speak to the father for one additional 45 minute phone call to take place on any night of his choosing between 6:00 pm and 7:00 pm, with the father to give the mother two day’s notice in writing of the particular additional night he chooses. 

variation of the primary parenting orders

1. As I observed in my reasons for judgment delivered on 3 May 2012, the parties appear to have had extreme difficulty agreeing on the meaning and interpretation of the primary orders that were made by consent by FM Jarrett on 4 May 2011 as amended on 27 July 2011. I consider, having regard to all of the evidence I have read and heard, and the matters set out in s 60CC of the Family Law Act 1975 (Cth), that it is in the children’s best interests to vary the orders so that there can be, hopefully, far less room for disagreement and the escalated conflict that I am satisfied invariably flows from such disagreement between the parents in this case.

2. The orders currently provide for shared parental responsibility and an equal shared care regime that has the children in the care of the parents on a week about basis during school term and for equal time during school holidays.

3. The orders currently provide that the children “live with” the father but that they “spend time” with the mother. That is curious nomenclature having regard to the equal shared care regimen. My variation to the primary orders will address that so that there is no suggestion of any difference between the responsibilities and obligations of the parents in respect of the time the children spend in their care.

4. I will also be varying the primary orders so as to more clearly delineate the boundaries between the week about care regimen and to avoid the problems that occurred on the Friday afternoons that the children were transitioning after school into their father’s care that were part of the problems that brought the parents to Court on these contravention proceedings.

5. I will also allow for the current spouses of the parents, who I am satisfied the children know and relate to, to be adults responsible for transitioning the children between the parents at the election of the mother or the father to allow seamless transition in the event that either parent is unable to be available at such transitions.

6. My variation will also include changes to the way in which the parties calculate the school holidays, the time the children are to spend with them during the holidays and the transition of the children between them. These variations are all necessary, in the circumstances, to reduce the prospect of the parties coming back before the Court as a result of further misunderstandings and disagreements and are, as such, I am satisfied, in the children’s best interests.

7. I will also discharge a recovery order made by FM Jarrett on 23 September 2011 that remains current at this time as the wording of that order no longer applies having regard to my variation of the primary orders.

8. I will also vary the primary order by providing, expressly, for the parties to conscientiously attempt mediation in the event that they disagree about decisions pertaining to major long term issues (as that term is defined in the FLA) notwithstanding genuine effort to reach agreement, before either of them applies to this Court again. It is clear that s60I of the Family Law Act 1975 (Cth) already requires this but in this case I consider it entirely appropriate to clearly express this requirement in the order that the parties will be working with so that there is absolutely no doubt about what is required of them in the event of further dispute.

9. I make the orders set out at the commencement of these reasons.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 8 June 2012.

Associate: 

Date:  8 June 2012