James and Laura were a young couple who separated shortly after the birth of their first child Nancy. Nancy, a newborn at the time, lived with Laura and initially spent time with James for a few hours each week. The parents were able to agree to gradual increases in the time Nancy spent with James, and both believed they were sensitive to Nancy’s fast changing needs as a baby. By the time Nancy was nearly 12 months old, James was increasingly dissatisfied with the amount of time that he spent with Nancy, as he was desperate to spend as much time with her as possible. He wanted her to stay overnight with him once a week, but Laura strongly opposed this as she believed Nancy was far too young to be removed from her primary carer for a prolonged period of time. The disagreement surrounding the time that Nancy spent with James caused growing conflict between Laura and James, including several verbal arguments. Following one such argument, James decided to take matters into his own hands and he refused to return Nancy until the following morning. Laura was obviously very upset at his actions and the relationship between the parents further deteriorated. About a month later he again refused to return Nancy, but on this occasion he continued to refuse to return her. Laura filed an urgent application at Court and obtained a recovery Order so that James was forced to return Nancy to her care.
Following the recovery order, the litigation continued but the parents were able to reach a settlement regarding the time Nancy spend with James, and entered into consent orders. The effect of the orders was that Nancy would remain living with Laura and that she increase her time with James every 3 months with overnight time taking place once a week when Nancy turned 2 years old, and increasing the time when she was 4 years old. When Nancy turned 5 she would spend long alternate weekends with James and half of the school holidays. James and Laura’s relationship settled down after the agreement was reached to a mostly courteous and functional relationship for Nancy’s benefit.
Nancy is now 8 years old and has a strong bond with both of her parents. She remains the only child of both parents, she is doing well at school and has secure friendships. She has been vocal, to both of her parents, about wanting to spend more time with James. James arranged a meeting with Laura and requested that Nancy spend an additional overnight period with him each week. Laura refused and told James that he needed to follow the Court Orders. James was unsure what to do and attended at Sarah Bevan Family Lawyers.
We discussed with James the history of his relationship with both Laura and Nancy, what he sought to change and why, and importantly how he considered the changes would be in Nancy’s best interests. The main change he was seeking was significant but taking into account all of the history he had described, including Nancy’s apparent views, it appeared his proposal was reasonable.
We advised that that, for them, the required first step was mediation. This was to assist them to reach a resolution, or at least narrow the issues, without the need for litigation. If this failed and the mediator issued a certificate known as a section 60 I certificate, then he would have the option to commence court proceedings. James arranged an intake session with a mediator referred by us, but despite the mediator’s best efforts at persuasion, Laura took the view that there was nothing to discuss and so she refused to participate in mediation. The mediator issued a section 60 I certificate.
James then returned for further advice about Court proceedings. We advised James that as there were previous orders in place, he would have to meet the threshold test based on the principles in the Rice v Asplund case. This meant that James had to prove to the Court that there had been a significant and substantial change for Nancy which warranted the Orders being revisited. In the circumstances of his case, we were of the opinion that it was likely the Court would find the threshold was not an issue for him. After carefully considering the impact of Court proceedings on Nancy and on himself, and after making more attempts to reach agreement with Laura, James decided that he would proceed an application to the Court.
We prepared his Initiating Application and affidavit addressing the relevant factors to support the change of the Orders. Laura did not file her documents in Response by the first Court date. However, the Judge at our request expressed her view that the threshold issue would not be dealt with as a discrete issue, and instead the Judge indicated it would be part of the proceedings generally. In some cases, the Judge decides to determine the threshold issue separately, relatively soon after the Initiating Application is filed, but in other cases (such as this) the Judge decides to let the case proceed as normal and to deal with any threshold issue as part of the whole case. As often happens, Laura herself sought changes (although less significant changes) in her documents when she filed her Response. That usually means that the threshold issue is no longer a live issue in the case.
After filing her documents in Response, the Judge made an order requiring the parents to engage in mediation. They attended mediation and agreed on a number of issues, including one of the overnight periods a fortnight sought by James. The remaining issues were the other overnight period a fortnight sought by James, and overseas travel provisions sought by Laura. Given the narrow issues involved, and in particular that Nancy was bright and had her own views, we suggested child inclusive mediation to James. This is done in various formats depending on the mediator and counsellor involved, and also depending on the family themselves. Here, the counsellor met with Nancy on two occasions and with both parents separately. The counsellor was then present at a further mediation session, so that the mediator, the counsellor, James, our lawyer, Laura and her lawyer were all involved in the mediation. James and Laura were then able to resolve all issues, which involved compromise by both of them. James was able to have the additional overnight periods he sought, although he agreed to an earlier return time than he initially sought. We drafted the agreement into consent orders, which both James and Laura signed, and the Judge later formally made into orders of the Court.
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All names and identifying features have been changed for privacy reasons in our case studies. These case studies only have basic detail in them, and you should always bear in mind that every case is unique. These case studies are examples only, and cannot be applied to your circumstances without consideration of all relevant facts.