Father Seeks Change in Child Custody Orders: Alternative Supervision Service Offered on Christmas Day
Emson & Makin (No 2) [2022] FedCFamC1F 946 (18 November 2022)
The father filed an application and an affidavit on November 16th, 2022 for a proposed variation of the final orders due to unavailability of the nominated changeover service on Christmas Day. He seeks either dispensing with the changeover service requirement or an amendment to allow for a different supervision service, Supervision Service B, to facilitate the changeover, if they are available to assist on Christmas Day.
Facts:
This court case involves a request to modify the final orders that were previously established for a child custody and access arrangement. The father submitted an application and an affidavit on November 16th, 2022, representing himself in the case, while the mother was represented by counsel. The Independent Children's Lawyer also appeared in court and was thanked for their participation.
The matter was previously resolved with a final hearing and decision by Judge Cleary, as well as an appeal that was dismissed. The final orders, which were established on September 20th, 2021 and amended on November 18th, 2021, along with certain consent orders from October 17th, 2022, resolved the issue.
However, the issue that is now before the court is the requirement for the children to spend time with the father over the next two years, as specified in the current orders. The changeover service that was nominated, Supervision Service V in City U, is unavailable on Christmas Day, making it impossible to carry out the orders as they stand.
The father has asked the court to dispense with the changeover service requirement, but this request has been opposed and was also denied in a previous argument. The judge cannot modify the substantive final orders under these circumstances.
As an alternative, the father is seeking to amend the orders to allow for a different supervision service, Supervision Service B, to facilitate the changeover. He has stated that this service has indicated that they may be available to assist on Christmas Day.
Issue:
The issue is that the orders require a change-over service for the next two years, but the nominated service is not available on Christmas Day 2022 and 2023. The father wants to dispense with the change-over service requirement, but the request was opposed and lost before.
Applicable law:
Family Law Act 1975 s 121(9)(g) - makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Analysis:
The father is proposing a change to the final orders regarding a changeover service for the children, as the nominated changeover service is not available on Christmas Day. The ICL and the mother do not strongly oppose the change as long as it is made through a recognized independent changeover service. The change would be a machinery provision amendment and the judge has the power to make it if the father can find someone from Supervision Service B to work on Christmas Day. However, if that does not happen, the children's time with the father on Christmas Day will not take place.
Conclusion:
This order changes the existing orders for Christmas Day 2022 and 2023. On both of these days, the changeovers for all three children will be supervised by Service B at Location C. The mother will deliver the children to the service and collect them from the father, unless otherwise agreed. The cost of the supervised changeovers will be split equally between the parents. If Service B is unable to facilitate the changeovers, the children will not spend time with the father on Christmas Day.
Case: Emson & Makin (No 2) [2022] FedCFamC1F 946
Judgment of: SMITH J
Counsels:
Solicitor for the Applicant: Litigant in person
Solicitor for the Respondent: Mullane & Lindsay
Solicitor for the Independent Children's Lawyer: Legal Aid NSW Newcastle Family Law
