defendant. Father's application dismissed save for limited variations: (1) Orders 2.1 and 3.3 varied to extend collection time from 3pm to 5pm subject to father arranging registered child care and paying all...
Key principles
The Family Court of Australia (Moore J) dismissed the father's application to vary parenting orders regarding travel and handover arrangements, but granted a limited variation...
The Court applied the principle from Rice and Asplund (1979) FLC 90-725 that before entertaining an application to vary existing parenting orders, a significant, substantial or...
The Court held that while the father's work commitments were impacted by the travel arrangements, this did not constitute a sufficient change in circumstances since the October...
The Court found that requiring the mother to undertake additional travel to the father's residence would substantially impact her work commitments and income, which she was less...
Issues before the court
Whether the father's application to vary parenting orders regarding travel and handover arrangements should be granted
Whether the mother should be required to deliver children to the father's residence for handover
Plain English Summary
A father asked the Court to change parenting orders so that the mother would have to drive the children to his house for handovers, rather than meeting at school or the grandfather's house. He said his work made the travel difficult. The Court said no, because the father had agreed to these arrangements less than a year ago and there hadn't been any significant change in circumstances. The Court noted that making the mother do extra driving would hurt her business, and she earned much less than the father. However, the Court did allow the father to pick up the children at 5pm instead of 3pm, provided he arranged proper after-school care and paid for it himself. The Court also added an order letting either parent ask another responsible adult to pick up or drop off the children, which might be needed if the father lost his licence due to pending drink-driving charges.
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Judgment (63 paragraphs)
Whether the father should be permitted to collect children at 5pm rather than 3pm
Whether parents should be permitted to authorise other adults to collect/return children
The father's application as amended 8 July 2008 for variation of the orders made in the Federal Magistrates Court on 17 October 2007 is dismissed save as set out hereunder:
[10]
(i) Orders 2.1 and 3.3 are varied to extend the time from 3pm to 5pm PROVIDED the father makes suitable arrangements for the children's care after school to 5pm with a registered child care provider or other suitable carer agreed by the mother and PROVIDED FURTHER the father is solely responsible for payment of all costs of and incidental to the children's care during the extended time.
[11]
(ii) A further order 8(a) is to be inserted in these terms:
[12]
'Both parents are to be at liberty to authorise another responsible adult to collect the children or return the children to the venue designed by Order 8 at times they have that responsibility.'
[13]
IT IS NOTED that publication of this judgment under the pseudonym Wipp & Wipp is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
[14]
The decisions required are narrow in scope. They concern some of the arrangements for the parties' two children: R, almost 7 years of age (dob. October 2001) and G, 5 years of age (dob. July 2003); in particular, whether existing arrangements about travel and handover should be varied, and there is a minor issue about an extension of time.
The evidence is limited to affidavits from the parents and there was also read the Reasons for Judgment of the Federal Magistrate on two previous occasions. At the election of counsel the matter proceeded by way of submissions.
[15]
On 17 October 2007 final parenting orders were made by consent except for two issues determined by the Federal Magistrate that day. The terms of those orders are set out in a schedule at the end of these Reasons. Essentially, they provide for the parents to have equal shared parental responsibility and the children are to live with their mother and spend substantial and significant time with their father. Subject to a progressive increase initially in the younger child's time, the time would include from 3pm Friday after school until the commencement of school Wednesday every second week during school terms, various special occasions, and certain block periods during school holidays. Other orders deal with various matters, including the children's attendance at a specific primary school until the completion of year 4 [determined by the Federal Magistrate] and a number of parental responsibilities. This is the provision about travel to facilitate the orders:
[16]
'8. That during the school term all handovers of the children will occur at school and at all other times handover will occur at the residence of [Mr S], the maternal grandfather and upon either parent notifying the other of any difficulty or dispute regarding handover, [a shop] at Cairns Central Shopping Centre will be the nominated alternate (sic) venue for handovers.'
[17]
As the mother put it, they agreed she would be responsible for delivering the children to their grandfather's home for changeover on Father's Day, the father's birthday, each of the children's birthdays and for school holiday times with their father. All other school term handovers would be undertaken according to order 8 at school, which in practical terms meant the father would collect them every second Friday afternoon and take them to and from school Monday and Tuesday of that week before returning them to school on Wednesday morning. The grandfather's residence at D is located about a kilometre or 5 minutes drive from the father's residence at D.
This order is the subject of argument here, along with the father's proposal to extend the time he collects the children after school to 5pm.
[18]
The father instituted the current round of proceedings on 12 March. The matter came before the Federal Magistrate on 16 June and directions were made for the final hearing on 1 August. At the same time the Federal Magistrate made orders varying the travel arrangements by imposing upon the mother an obligation to deliver the children to the father's residence between 6.30pm and 7pm while the children spend time with him pursuant to orders 2 and 3. For that purpose the father was directed to ensure (a) the front gate is unlocked and opened and (b) he is not at the gate or in the front yard when the children are dropped off and mother was directed to ensure the children arrive safely in his premises.
The mother appealed from the decision and sought a stay of the orders in the meantime. But as I apprehend it she has withdrawn, or will withdraw, those pending proceedings since the matter was transferred to this Court for final hearing during the current circuit sittings.
The orders now sought by the father are set out in his amended application filed 8 July:
[19]
'(a) The mother will be responsible to deliver the children to the father's home at the commencement of his time with the children each alternate Friday by 6.30pm, and the father will be responsible to return the children to the maternal grandfather's home at 7am on the following Wednesday.
[20]
(b) The father will be responsible to deliver the children to, and collect them from, their respective school or day care each Monday and Tuesday that they are in his care.
[21]
(c) The father will collect the children by 5pm on each of the above days, and where necessary, he will be responsible to organise after-school care for them until collection.
[22]
(d) All changeovers which occur other than on school days will occur with the mother to be responsible to deliver the children to the father's home at the commencement of the time they are to spend with him and the father will be responsible to deliver the children to the home of the maternal grandfather, at the conclusion of their time with him, unless the parties agree otherwise in writing.
[23]
The mother asks the application be dismissed by her response filed 16 June. However, her counsel submits she would not object to the extension of the time to 5pm for their father to collect them from school provided he arranges child care with a registered provider and pays for it. In her response she also sought to restrain the father from initiating further proceedings about the children without first seeking leave from a Court, but this was not mentioned and therefore it can be assumed it is abandoned.
The changes under discussion therefore are about (i) travel responsibility; (ii) handover venue; and (iii) extension of time after school from 3pm to 5pm for the father's collection.
[24]
There is some further background but it is relatively brief. The parents began living together in 1992, they married in Cairns in November 1998, they separated in January 2003, and they were divorced in November 2005. Litigation between them began in 2003 and proceeded over time in this Court and the Federal Magistrates Court.
The father lives at D and has done so since separation. He is a tradesman and works for himself, apparently in and around the Cairns area. It is said that he earns around $55,000 per annum.
After separation at some point the mother moved with the children to live at L and in March 2006 she moved closer to Cairns to live at N. After the move to N she began work full time with B Centre. In January 2007 she reduced her hours when she started her own service business. She remains living at N and she continues to work part time at B Centre and conduct her business. It is said that her income is around $25,000 per annum.
Child support has apparently fluctuated and there has been a dispute in the Child Support Agency about accrued arrears and child support assessment which has resulted in a recent decision. Arrears are now around $4,911 after being reduced by $2,887 under garnishee and the child support assessment has now been set at $433 per month.
On neither the move to L or N did the mother discuss her movements with the father who found out she was living at N from one of the children while driving in the area. She maintains the father had been abusive towards her and she cites an order made on 3 February 2004 by Nicholson CJ with respect to their property which also imposed restraint on the father approaching or entering her residence except for the purpose of changing the children's care unless agreed otherwise. She alleges his disregard for the order by driving past her home was the catalyst for her decision to move to L where she would feel safe and he could not 'monitor' her and her movements. From L she drove the children at her own expenses every second weekend to and from her father's residence at D for the children to be collected by their father. After she moved to N in March 2006 she continued to drive the children at her own expense every second weekend to and from her father's residence at D for that same purpose.
After the orders of 17 October last year the father only once had the children in his care for the agreed 5 nights a fortnight and that was on the first weekend after the orders. Otherwise, until the orders of 16 June, he has collected them from school on Friday afternoons and returned them on Monday mornings. After the orders of 16 June the grandfather delivered the children to the father's residence on the mother's behalf as provided in the orders.
[25]
There is an argument put for the mother to the effect that the decision of Rice and Asplund(1979) FLC 90-725 applies to the father's application; that is, no new circumstances have been demonstrated and his application should be dismissed accordingly.
Since it was decided in 1979 this decision has been affirmed by a string of appellate decisions and more recently Warnick J held it to still apply notwithstanding the 2006 amendments to the Family Law Act [see SPS & PLS [2008] FamCAFC16, 28 February 2008]. Put simply, the case stands as authority for the proposition that before the Court will entertain an application to vary existing parenting orders a significant or substantial or sufficient change must be shown to have occurred since the earlier orders or, put another way, the Court must be satisfied that the child's best interests are being served by further litigation about the child's arrangements which are already the subject of Court orders, irrespective whether those order were made by consent or adjudicated. The underlying rationale is readily understandable: the public and private interest in the finality of litigation must be given some weight and the important private interests of children are unlikely to be served, save in special circumstances, by prolonged and repetitive proceedings [see High Court decision of CDJ v. VAJ(1998) 23 Fam LR 755; FLC 92-828]. Change is integral to human affairs and the Court should not lightly entertain an application to reverse an earlier order since to do otherwise, absent sufficiently changed circumstances, would be to invite endless litigation which itself can be harmful to children's interests and welfare [see Gaul and Gaul[2000] FamCA 12).
Warnick J in elaborated on this and he also discussed the distinction to be drawn between a decision to apply at the outset of a hearing before evidence related to the substantive claim is agitated and consideration of its application after the close of evidence, alternatives permitted by the Full Court in What his Honour's discussion underscores and supports is the decision here not to reject the father's application by an application of To reject it on that basis would be a difficult decision to hold, I would think, in circumstances where the evidence is limited to the parents' affidavits which are quite narrow in scope and the matter proceeded at the election of counsel by submissions alone. Nonetheless, what his Honour's discussion also supports is the observation that while the application of might in some cases be withheld until the close of the evidence, that tends to undermine the aim of avoiding litigation in the interests of children where there is no sufficient change, and applications which demonstrate insufficient change should not be left to appear condoned or encouraged. In this case, having considered the issues afresh in light of the material filed and the submissions made, it is difficult to conclude there is any sufficient change to the circumstances that prevailed at the time of the 17 October orders. What changed was the father's attitude to undertaking the travel he agreed to every fortnight during school terms, which he attributes to lack of experience and foresight.
[26]
The father's case rests substantially on the proposition that by reason of his work commitments he cannot do the travel involved. He says he had no notion of the distance and time involved until after the 17 October orders. He has to leave work at D up to an hour before collecting the children at 3pm and the trip back takes at least 40 minutes because it is the beginning of peak hour. Taking the children to school in the mornings takes longer because it is in peak hour traffic. He says he allows 1 ½ hours each way to ensure they are delivered on time. He says he does not have flexible hours and 'a tradesman' begins work at approximately 7am and finishes at about 4pm. If he takes time out of his work fortnight his contracts fall behind accordingly, 'something no client would accept'. Also, other trades are dependent on him completing his work on schedule.
On 21 November he had his solicitors write to the mother to say the order about travel was unworkable, the suggestion being that the round trip covered 61 kilometres and took 2 hours because of the traffic. This was said to effect his work since he has to leave work at 2pm and could only return at 4pm 'leaving him no real time to finish work' and the same applied to drop offs since he could only get to work at 10am. He suggested they meet half way or, alternatively, he would collect the children from after school care so he could finish work and their mother could collect them from her father at D, but he invited any other reasonable suggestion in an effort to avoid the matter returning to Court on a fresh application.
His solicitors wrote again on 27 November when there was no response and he made another suggestion in that letter: he would pick them up from school but he asked if their grandfather would be willing to drop them off to school when they are with him and he would pay for the grandfather's petrol costs. Again the letter concluded with a foreshadowed return to Court. Her solicitors replied the same day advising they were seeking instructions. But nothing was forthcoming and on 4 December after a further letter her solicitors again wrote to say they were awaiting instructions. The mother ultimately replied and declined, saying she had her business and would lose clients and income.
In his first affidavit the father suggested the mother could drive a little further than she ordinarily does to take the children to and from school by meeting roughly half way at a mutually convenient venue. He expressed the concern that unless this issue is resolved he will be unable to spend time with the children according to the orders because it so impacts on his work hours. His affidavit included argument to the effect that both parents have an obligation to ensure the children spend time with each parent and he alleged the mother has repeatedly shown by her actions that she does not consider she has any responsibility or obligation to assist in this regard. She made a unilateral decision to move the children away from Cairns without notice to him and she knew the distance and travel difficulties between their school and his home at the time she agreed to the orders. It had been her argument for the children to remain at school at N that had prevailed with the Federal Magistrate, and he suggests she put that proposition with full knowledge he would be unable to maintain the travel.
[27]
From the mother's point of view they both had ample time to consider the arrangements they agreed to last October, including the arrangement for the children to spend 5 nights a fortnight with their father which she says allowed him to participate in their day to day activities and be involved with their school. She suggests he has the flexibility to arrange his work commitments around the children's needs.
Fundamental to her case is the proposition that if she were obliged to take the children to D Friday afternoons and collect them from there early on the Wednesday morning she would lose significant income because she would have to close her business. She says clients will stop using her service unless she can offer the full range of times morning and afternoon that they need and she also needs to offer flexibility. The first client arrives around 6am and, while the business is to close by 6pm, there are times when clients are running late. She sets out her daily schedule in some detail, including the children's bedtime routine from early evening.
The submissions on her behalf are to the effect that she is entitled to rely on the October orders and she has consolidated her own day care business to take on morning and evening work to supplement her income from part time work. Nothing has changed. Despite her apprehensions about the father she has never used that as a tool in the children's relationship with him and she has supported that at all times by ensuring the children spent time with him regularly as agreed, including undertaking all of the driving to and from D when she lived at L and after the move to N. He ought to have known, being a local as he is, what was involved in the drive to and from N. If the issue is to be reconsidered and the Rice and Asplund argument rejected, it is submitted the result ought to be exactly the same as the 17 October orders.
As for the changeover of the children's care at the father's residence, she says she cannot do it by reason of the history, at least from her perspective, and that is why her father's home has been the accepted venue apart from the school.
As for the extension of time after school, she signifies her consent to a 5pm collection provided (i) the day care he arranges is with a registered provider and (ii) if he uses G's current day care centre he pay for the extra time the children are there.
[28]
Given the narrow scope of the issues to be determined and the relatively brief submissions about them, they require no lengthy discussion. Nonetheless, in coming to a decision the best interests of the children are the paramount consideration [s 60CA] and best interests are to be evaluated through the primary and additional considerations [s 60CC] having regard to the objects and underlying principles [s 60B]. In so far as the limited evidence permits, those matters are to be considered.
The first of the two primary considerations is the benefit to the child of having a meaningful relationship with both parents. In this case there is no reason to think the children do not have a meaningful relationship presently with both parents, nor any reason to think that is not of benefit to them. The parents agreement on 17 October attests to that. Of course to the extent that a meaningful relationship ideally might be supported by at least substantial and significant time to be spent with a parent, in turn that assumes any obstacles of a practical nature can be overcome. The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The mother's allegations of past behaviour by the father, whether accurate or not, are not about wrongdoing now or in the recent past and for present purposes this consideration can be said to have no application.
Turning to the additional considerations:
The views of these young children about the issues under discussion are not part of the evidence, for good reason. There is a submission from counsel about their attitude to being dropped off at their father's rather than their grandfather's, but no weight could be attached to that in the circumstances.
There is no reason to think the children have anything other than a good relationship with both parents. Again the agreement last October attests to that.
The submissions for the father allege that the mother is not willing to facilitate and encourage a close and continuing relationship between the children and their father and her attitude here is motivated by ill will. But that is not made out at all. Her support of those relationships is evident over the years of separation, obviously in the face of her own troubled relationship with their father, when she did all of the travelling to take them to spend time with their father regularly. True it is she had moved to a place she did not want him to know about and therefore may have been motivated to keep her whereabouts secret from him, but she did it nonetheless and there is no evidence she sought to curtail their time together or their relationships because of the moves.
[29]
All matters considered, it is my view the arrangements contemplated by the October orders should remain in place save for an extension of the collection time from 3pm to 5pm to assist the father subject to appropriate arrangements being made for their after school care that does not impose a burden on their mother, financial or otherwise.
In saying so, it is recognised there are merits to the arguments put by the father. More especially, it is recognised there is a substantial impact on his work commitments every second week during school terms on Friday afternoon, morning and afternoon Monday and Tuesday, and again on Wednesday morning and it is recognised his proposal is for the mother to do the travelling only for the first and last of those occasions. Yet that would also substantially impact on her work commitments, in ways that are entirely understandable since her services need to be available for the range of times clients require. When work impact issues are balanced one against the other, the mother is less able to absorb any loss of income because she earns much less than the father - even taking account of the child support he will pay under the recent assessment - and she has responsibility for the children's care most of the time. Also, she does assist with travel - school holiday periods and various special occasions - and she will continue to do so if the October orders are retained. Continuation of the October orders will not mean the children will not see their father regularly in school terms, but it will mean they will see him either for shorter weekends, as has been occurring, or for the extended periods, if he so elects and he makes whatever other arrangements he can to accommodate the travel involved. Their mother is not the answer to that dilemma.
Although it was not discussed, there would seem to be no reason the parents could not make arrangements for the children to be collected or returned by other responsible adults. If counsel is right and if the father is convicted of drink-driving later in the year and he loses his licence, he is going to have to come to some arrangement with someone to collect and return the children. To the extent it might be considered necessary to specify it in the orders, it would be as well to provide for it now.
As for the venue to change over the children's care on other occasions, nor should there be any change to the October orders in that direction. The arrangement whereby the grandfather's home has been the venue has been in place for years and was a satisfactory enough arrangement for it to continue when the October arrangement was negotiated and agreed. There is no sound reason for it to change now; it is reasonably proximate to the father's residence and there is little inconvenience for him in meeting that obligation. Obliging the mother to take the children to the father's residence when she objects to it can only lead to discontent which may trickle through to the children and there is no sound reason for it to be imposed.
[30]
[...] ("the Mother") and [...] ("the Father") are to have equal shared parental responsibility for [R], born [...] October 2001 and [G] born [...] July 2003 ("the children").
[31]
Children to live with each parent for substantial and significant time
[32]
The child [R] is to live with the Mother and spend substantial and significant time with the Father as follows:
[33]
2.1 From the conclusion of school Friday, 26 October 2007 at 3.00pm until the commencement of school on Wednesday and each alternate week thereafter;
[34]
The child [G] is to live with the Mother and spend substantial and significant time with the Father as follows:
[35]
3.1 From 4.00pm Saturday 27 October 2007 until 4.00pm Sunday 28 October 2007;
[36]
3.2 From 3.00pm Friday 9 November 2007 until 4.00pm Saturday 10 November 2007;
[37]
3.3 From the conclusion of school/day care Friday 23 November 2007 at 3.00pm until the commencement of school/day care Wednesday and each alternate week thereafter to coincide with the time the father spends with [R] pursuant to Order 2.1 above.
[38]
3.4 For the purposes of Orders 2 and 3 the Father is to provide the Mother with a minimum seven (7) days notice in writing if he is unable to avail himself of the time with the children and the Mother is not then required to reschedule times or provide make-up time to the Father.
[39]
4. The children [R] and [G] are to spend time with each parent as follows:
[40]
4.1 With the Father from 9.00am Father's Day until the commencement of school the following day if the children are not then spending time with the Father.
[41]
4.2 With the Mother from 9.00am Mother's Day until the commencement of school the following day if the children are not then spending time with the Mother.
[42]
4.3 With the Father for each child's birthday from 3.00pm until 6.00pm if the children are not then spending time with the Father.
[43]
4.4 With the Mother for each child's birthday from 3.00pm until 6.00pm if the children are not then spending time with the Mother.
[44]
4.5 With the Father for five (5) days commencing Christmas Eve 2008 and each alternate year thereafter.
[45]
4.6 With the Mother for five (5) days commencing Christmas Eve 2007 and each alternate year thereafter.
[46]
4.7 In the year that the Father is not spending time with the children, from Christmas Eve, the Father shall then choose an alternate week in the Christmas/New Year Queensland gazetted school holiday period to spend time with the children.
[47]
4.8 With the Father for a block period of one (1) week each Queensland gazetted school holiday period, to be nominated by the Father.
[48]
4.9 For the purposes of Orders 4.7 and 4.8 the Father is to provide the Mother with thirty (30) days notice in writing.
[49]
That each parent shall have telephone contact at all reasonable time when the children are spending time with the other parent, such telephone contact to be directed to the other parent's mobile telephone number unless otherwise by agreement.
If the Father fails or neglects to provide the Mother with written notice that he is unable to avail himself of time with the children pursuant to these Orders the Mother is not required to reschedule times or to provide make-up time to the Father.
That the contact provided for in Order 2 and 3 above is suspended during Queensland gazetted school holiday periods save and except for holiday time and special days provided for in these Orders.
That during the school term all handovers of the children will occur at school and at all other times handover will occur at the residence of [...], the maternal grandfather, and upon either parent notifying the other of any difficulty or dispute regarding handover, [a shop] at Cairns Central Shopping Centre will be the nominated alternate venue for handovers.
[50]
That the children [R] and [G] will be enrolled and remain at [...]State Primary School until the completion of Year 4.
That the Mother and Father are not to enrol either child at any other educational facility without first consulting and discussing with the other or until further Order of the Court.
[51]
Other order relating to parental responsibility
[52]
That without limiting the parental responsibility of each parent, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parenting issue affecting the children. For the purpose of these Orders, a "significant parenting issue" is:
[53]
11.1 any medical or health matter concerning the children;
[54]
11.2 any medical or health matter affecting either parent which may affect the ability of that parent to care for the children;
[55]
11.3 matters relating to the education of the children, including, but not limited to, the choice of school and curriculum and the provision to the other parent of all school reports, school photographs and all communications from the children's school other than with respect to routine or administrative matters;
[56]
11.4 Disciplinary matters other than of a trivial nature;
[57]
11.5 Matters concerning the social development and sporting activities of the children;
[58]
11.6 Matters concerning the religion, faith or culture and custom of the children;
[59]
11.7 The place of residence of the children and any telephone number for contact with the children, including any change thereof;
[60]
11.8 Any intended change in the surname by which the children are commonly known from that which appears on the children's birth certificate.
[61]
11.9 Any change in any other name used by the children. The child [G] shall be known as and enrolled as that which appears on her birth certificate "[G]". The child [R] shall be known as and enrolled as that which appears on his birth certificate "[R]".
[62]
The Mother shall authorise the children's school to furnish the Father with school reports and all relevant information regarding the children's schooling and notification of parent/teacher interviews, relevant days and school photographs.
[63]
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
Legislation Cited (1)
Law Act 1975
Cases Cited (1)
(1998) 23 Fam LR 755
AI Analysis
Outcomedefendant
Disposition:
Father's application dismissed save for limited variations: (1) Orders 2.1 and 3.3 varied to extend collection time from 3pm to 5pm subject to father arranging registered child care and paying all costs; (2) Additional order inserted permitting both parents to authorise responsible adults to collect/return children.
In her affidavit the mother describes observing the police breathalyse the father when he arrived in his vehicle at her father's residence with the children on 27 January. The father said nothing of it in his affidavit, but his counsel confirms he has been charged with drink driving, it is said his blood alcohol was .07, and it is expected there will be a hearing in November when, it is said, he will present some medical evidence. According to the mother's counsel, given his two previous drink-driving convictions - not denied - it is reasonable to anticipate he will lose his licence for 3 or 4 months if convicted. Whatever the case, it is established that at some stage in the future there is the prospect the father will lose his drivers licence for a period and, in that event, other arrangements will have to be made for him to have the children in his care quite apart form the dispute agitated here. Regrettably, there seems little cause for optimism about constructive discussion if that happens because after 5 ½ years of separation they still have no means of communication on matters of importance other than text messages and solicitors letters.
On behalf of the father it is said the distance factor will not go away and his application is to obtain her assistance by doing some limited travel on Fridays and Wednesdays, two trips a fortnight. It is said she would not be disadvantaged by this arrangement. While it is conceded there would be some inconvenience to her having to collect the children on the Wednesday morning, it is only one Wednesday a fortnight and he will still be doing the travel every second Monday and Tuesday. Attention is drawn to the obligation on both parents to ensure orders work and ensure children have a relationship with the other parent; yet the mother shows a real reluctance to promote their relationship with their father. It is acknowledged she did the travelling when she lived at L and earlier at N but she made those moves without telling him and she did not want him coming to her home. There is nothing to substantiate the statement that she has 'rearranged her life' since the 17 October orders because she has not had to make any adjustment whatever and the suggestion she would be doing 75% of the driving on his proposal is an exaggeration. He accepts she would have fuel costs but he had offered to pay those costs earlier and she had refused it.
On the question of the children being delivered to the father's home rather than elsewhere, it is submitted the children are entitled to come to his home, the mother drives past there to go to her father's place, it is said the children question why they are collected at their grandfather's, and there is no reason for them not to be dropped off at their father's. The submission is made that the father and grandfather do not get on, yet despite his discomfort the father had agreed to changeovers occurring there and he would continue to do so in some instances because he accepts there needs to be some concession on his part. Furthermore, they have now been separated for several years and there is no evidentiary support for any allegation of domestic violence, save for reference to the order of Nicholson CJ at the end of the 2004 proceedings. The mother had earlier made two applications for domestic violence orders, both unsuccessful, and the father denies he had been stalking her. Counsel points to his evidence that the mother had come within close proximity to him on a couple of occasions, once at the child care centre, and she appeared unconcerned. It is said the father feels strongly about the venue issue. He would have no difficulty with an order similar to the order of the 16 June. If she chooses not to turn up in person at his house - as was the case after the June orders - that is a matter for her and, similarly, if he has someone else collect them from the grandfather's residence for him that is a matter for him.
As for the extension of the time for the father to collect the children from school in the afternoons, it is submitted there would be no disadvantage to the mother, it is his responsibility, he can make the arrangements for them to be at the ABC Learning centre or, if not there, then he is entitled to make his own arrangements and it is not for her to impose conditions. He agrees to pay for any costs involved in child care for the additional time.
Nothing gives rise to concerns about the attitude of either parent to the responsibilities of parenthood or about their capacity to meet the children's needs, emotional or intellectual. Obviously the mother is responsible for their care and upbringing for a greater part of their time but she appears to discharge that responsibility well. It is also apparent there has been dispute about child support and arrears but an earlier assessment of $27 per month attest to the mother taking significant responsibility for the children's financial needs. The recently issued assessment will see a more realistic level of support being paid by the father.
On one view of it the father has failed to fulfil his responsibilities by failing to take the opportunity to spend time with the children [s 60CC(4)], but it has to be recognised that is the very heart of this dispute and there should not be an adverse finding about that.
The changes proposed by the father are unlikely to affect the children. That said, since he has elected to confine his time to alternate weekends rather than the extended time available they are doing less travel than contemplated by the October orders and of course if he did take the extended time they would be doing more travel.
There are practical difficulties and expense for the children spending time with their father by reason of the distance and road traffic at times they are to go to and from school while in his care. As for whether the difficulty or expense will substantially affect their right to maintain personal relations and direct contact with both parents on a regular basis, that is a more difficult question. However, there is no reason to think the father would not continue to have the children alternate weekends Friday afternoon to Monday morning rather than the extended period if he is required to continue with the travel arrangements stipulated in the October orders. In that event, it could not be said that arrangement would 'substantially' affect the children's right to maintain personal relations and direct contact with both parents on a regular basis.
There is no family violence order and no evidence of family violence of current relevance here.
Of course it would be preferable to make the order that would be least likely to lead to the institution of further proceedings about a child. But that does not mean capitulation to the dictates of a parent who might foreshadow further proceedings unless the argument is seen their way. This consideration is directed more to the nature of the order under contemplation and whether that will require future review and the like. It has no relevance here.
These considerations are to be seen in light of the objects about meeting children's best interests by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children's care, welfare and development [s60B(1)]. The principles underlying these objects, except when it would be contrary to the child's best interests, acknowledge the child's right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and that parents jointly share parental duties and responsibilities and should agree about future parenting [s60B(2)].
Finally, the orders can be varied to allow the time for collection after school to be extended from 3pm to 5pm subject to the father making appropriate arrangements for the children's care during that time and paying for it. I can see no reason why that would not be a registered child care provider, which at least provides some measure of scrutiny of suitability in circumstances where the father appears to be unfamiliar with services in N, or other person the mother agrees.
In all the circumstances I am satisfied this would be in the best interests of these children. The father's application will be dismissed saved to make the changes foreshadowed.