A and B
[2003] FMCAfam 327
•15 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A & B | [2003] FMCAfam 327 |
| FAMILY LAW – CONTACT – Arrangements for Christmas Day and Father’s Day – arrangements for overseas travel. Family Law Act 1975, ss.60B, 65Y, 68F B and B: Family Law Reform Act (1997) FLC 92-755 |
| Applicant: | K R A |
| Respondent: | W T E B |
| File No: | DNM 2693 of 2002 |
| Delivered on: | 15 August 2003 |
| Delivered at: | Alice Springs |
| Hearing date: | 8 August 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Bowen |
| Solicitors for the Applicant: | Cecil Black |
| Counsel for the Respondent: | Ms Carew |
| Solicitors for the Respondent: | Dianne M Edwards |
ORDERS
That the child of the marriage namely R A B “the child” born 1 February 1993 live with the mother.
That each of the parties have responsibility for the child’s day to day care, welfare and development whilst the child is with that party.
That the parties have joint responsibility for the long term care, welfare and development of the child.
That the father have contact with the child at all reasonable times as may be agreed to and in particular as follows:
(a)In the event that the child continues to reside in Darwin:
(i)For one half of June/July Northern Territory gazetted school holiday period;
(ii)For one half of the Northern Territory gazetted Christmas school holiday period to include Christmas Day 2003, such period to alternate annually, with the father to exercise contact to the child during the second half of the Christmas school holiday period in 2004, such period to alternate annually;
(iii)At any other time that the child may be in the Brisbane area, or that the father may visit Darwin;
(iv)Telephone contact to the child on Father’s Day, the child’s birthday as well as the father’s birthday in each year between the hours of 6.00pm and 7.00pm Northern Territory time.
(b)In the event that the child resides in South East Queensland:
(i)Every alternate weekend commencing 5.00pm Friday and concluding 5.00pm Sunday, extending to 5.00pm Monday where Monday is a designated public holiday;
(ii)For one half of the Queensland gazetted school holiday period with the halves to alternate on an annual basis between the parties with the father to have the first half upon the mother’s relocation to South East Queensland;
(iii)On Father’s Day from 9.00am to 5.00pm;
(iv)On the child’s birthday for a period of 2 to 3 hours should it fall on a school day and for half a day should it fall on a non-school non-contact day;
(v)On the father’s birthday for a period of 2 to 3 hours should it fall on the child’s school day and between 9.00am and 5.00pm should it fall on a non-school non-contact day.
That irrespective of where the child may be residing, the father have telephone contact with the child each Monday between the hours of 6.30pm and 7.30pm Northern Territory time (being between 7.00pm and 8.00pm Brisbane time). In the event that the child is not available for meaningful telephone contact at this time, then the mother shall ensure that the child telephone the father at the earliest possible opportunity thereafter, at the expense of the mother.
That the parties provide one another with their current residential addresses and telephone contact number and will each notify the other in writing within forty-eight hours of any such change.
That the mother authorise any school attended by the child to release to the father upon the father’s request and at the father’s expense any information in relation to the child including calendars, parent interview dates, school reports, school photographs and sporting events.
That the mother authorise the child’s treating medical practitioner(s) to release to the father upon his request and at his expense information in relation to the child’s health.
That the Australian Federal Police place the name of the child R A B born 1 February 1993 on the PACE Alert System (Airport Watch List) in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the PACE Alert System until further order of the Court, or written agreement of both parties as witnessed by a solicitor.
That each party be responsible for the costs associated with these proceedings.
That each of the mother and the father be restrained and an injunction be granted restraining each party from denigrating the other in the presence of the child.
That during the contact to the father, the father enable the child to have reasonable telephone contact with the mother.
That all applications be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 2693 of 2002
| K R A |
Applicant
And
| W T E B |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are K R A (“the mother”) and W T E B (“the father”). They are the parents of one child R A B born the 1st of February 1993.
The matters in dispute between the parties are in small compass and relate to the father’s contact to R on Christmas Day and Father’s Day in the event that the parties are living in proximity to one another in South East Queensland and what arrangements and precautions should surround any travel the mother proposes for R outside of Australia. To the great credit of the parties, other than these discrete areas, they have been able to resolve all other issues in dispute between them in respect of parenting arrangements for R.
Background
The mother was born in New Zealand on the 10th of April 1969. The father was born on the 21st of January 1969. The parties met in Brisbane, where they married on the 7th of November 1993. They separated in Brisbane in early 1997. The marriage between them was dissolved on the 17th of November 1998.
The father operated his own construction company during the marriage. It fell into financial difficulties. The father acknowledges that he had problems with drinking, gambling and marijuana use. This led him to be erratic in his contact with R. He acknowledges that his life was out of control to some degree both before and after the parties separated.
In 1998, the mother commenced a relationship with D A, whom she married on the 1st of January 1999. Mr A’s work brought him to Darwin. The mother, Mr A and R moved to live permanently in Darwin in November of 1998. The father did not object to R leaving Brisbane. R has lived in Darwin ever since. Clearly, in those circumstances R would have developed a close relationship with Mr A. The mother has deposed that neither she nor her husband have any intention of moving from Darwin in the foreseeable future.[1]
[1] See paragraph 11 of the mother’s affidavit of evidence filed the 21st of July 2003
The father had no contact with R in any way from Christmas of 1998 until October of 2001. The mother mistrusted the father for his previous unreliability in respect of R, which the father acknowledges. For his part the father thought the mother had placed too many barriers in the way of him maintaining his relationship with R. The relationship between the parties was strained and marked by suspicion. So things remained until the middle of 2001, when proceedings were commenced in the Family Court at Darwin regarding parenting arrangements for R, particularly the father resuming contact with him.
On the 5th of July 2001, His Honour Justice Collier made orders that allowed for R to be reintroduced to the father in Darwin between the 1st and 6th of October 2001. Orders were also made restraining the mother from changing R’s surname from “B” to “A”. Thereafter, the father has had contact with R in January of 2002; in the Christmas holiday period of 2002/2003, which he spent with R on holiday at Stradbroke Island; and more recently for one week in July of 2003.
The mother and Mr A have two other children, S born the 5th of September 1999 and P born the 18th of March 2003. The father too has re-partnered. His present partner is B B, whom he met in 2000. Ms B has two children, A and J aged 11 and 8 respectively. The father has a large extended family who live in the Brisbane and Gold Coast area.
It is to the great credit of the parties that in the difficult circumstances of this case, particularly the distance between Darwin and Brisbane and the problems created by the three year break in the father having contact with R, they have been able to resolve the major issues regarding the father’s contact in future.
The issues
The issues in respect of the father’s contact to R on Father’s Day and on Christmas Day, in the event that the mother does move back to live in South East Queensland, are largely hypothetical, as this is not her intention at the present time. However, the parties still require an adjudication in respect of these matters and sadly have been put to some expense in regards to them.
The mother’s position in respect of Christmas Day, in the event that she moves back to South East Queensland, is that she and the father and their respective families should each have an opportunity to spend time with R. She proposes that contact at Christmas time be shared in a way that would see R spending from midday Christmas Day until midday on Boxing Day with his father and in the other year from 12.00 noon Christmas Eve until 12.00 noon Christmas Day. In this way R would have an opportunity to spend at least a part of Christmas Day with each of the paternal and maternal aspects of his family.
It is the father’s position that the first and second halves of the December/January school holidays in each year should be rotated on an annual basis between the parties and this will ensure that R spends the entire Christmas period with his father’s family and then with his mother’s family on an alternating yearly basis.
In support of her contention, the mother argues that as R is part of a family unit and the oldest of three siblings, it is likely to be in his best interests and also to be his wish to spend time with both the maternal and paternal aspects of his family on Christmas day. In particular, she believes that it would be unfair to prevent R from seeing S and P on what is one of the most significant days of the year for children.[2]
[2] See Family Law Act section 68F(2)(a) and (b)
The father argues that the mother’s proposal is unduly restrictive and would prevent him taking R away with him at Christmas time on a holiday. He also points to the fact that the parties have agreed to alternate Christmas Day between them in R’s present living circumstances in Darwin, by alternating the halves of the December/January holidays between them. If this is the situation which prevails when R is living in Darwin, he can see no reason why the same situation cannot prevail if he is living in South East Queensland.
In my view, this is not a question that is readily amenable to solution by the application of legal principle. However the law which is applicable is set out in Part VII of the Family Law Act. Section 60B(1) of the Act sets out the objects of this part of the Family Law Act. The object is to ensure that the children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interest, the following:
i)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
ii)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
iii)parents share duties and responsibilities concerning the care, welfare and development of their children; and
iv)parents should agree about the future parenting of their children.
The application of these objects is subject to the provisions of section 65E, which regards the best interests of the child or children concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2) of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (k) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve R’s best interests. The matters that are listed in section 68F(2) are as follows:
(a)Any wishes expressed by the child or children concerned and any factors such as the child or children’s maturity of level of understanding that is relevant in the circumstances;
(b)The nature of the relationship of the children concerned with the children’s parents and with other persons;
(c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or from any other person with whom he has been living;
(d)The practical difficulty and expense of the child having contact with people who are interested in the children concerned;
(e)The capacity of parents or any persons to provide for the needs of the children, including their emotional and intellectual needs;
(f)The children’s maturity, sex and background;
(g)The need to protect the children from any physical or psychological harm as a result of being exposed to abuse, ill-treatment, violence or other behaviour;
(h)The attitude to the child and the responsibilities of parenthood as displayed by the relevant parties;
(i)Any issue relating to family violence;
(j)Those orders that are least likely to lead to the institution of further proceedings;
(k)Any other fact or circumstance.
I accept that Christmas is an important celebration for the vast majority of members of Australian society, particularly the parents of small children. It is only natural that separated parents and the members of their respective families, would want to spend, at least a part of the most significant festive day of the year, with the child or children they hold dear. In the positions that each of the parties have adopted, they recognise this situation and each of their proposals recognises that there should be some sharing of Christmas Day between them. The only difference between the parties is how that should occur. Each have advocated logical reasons why his or her position is to be preferred. The distinction is a fine one and is not one which is likely to have any serious implications for R’s future development. It is regrettable in the extreme that it has to be determined by the Court.
However, I have determined that the father’s proposal is to be preferred. I have reached this conclusion because the parties have decided to alternate Christmas Day at the present time and if there is a change to the mother’s and R’s place of abode, it is sensible to perpetuate this arrangement. As I say, the mother has no such plans.
The issue of Father’s Day also seems to have become imbued with an enormous amount of significance for the parties, which is unlikely to have any large implications for R’s orderly development and maturation. The father seeks to have contact with R, in the event that he and the mother resume living in South East Queensland, between 9.00am and 5.00pm on Father’s Day of each year. The mother proposes that R should spend five hours on each Father’s Day with the father, alternating between 12.00 noon and 5.00pm in one year and 9.00am until 2.00pm in the other year. The mother’s rationale for such an arrangement is that it would enable R to spend a substantial part of Father’s day in each year with Mr A and his half-brother and sister, whom she points to as significant members of R’s family, particularly Mr A who is R’s step-father.[3] Accordingly, it is her view that R should have an opportunity to spend a significant portion of Father’s Day with Mr A and A and J so that his place in this family unit can be endorsed in a symbolic fashion on the day of the year which is significant to fathers and children. The father argues that such an arrangement would have a tendency to undermine his position as R’s biological father.
[3] See Family Law Act section 68F(2)(b)
I accept that this is an issue of emotional significance to the parties, however whatever orders are made, R will have an opportunity to spend some time with both Mr A and his father on Father’s Day. In my view it is important to adopt a consistent approach in respect of each year. R, although part of a blended family, has only one father in a biological sense. The principles underlying the Family Law Act as set out in section 60B emphasis the right of children to have contact with their parents. Although Father’s Day is a creation of the twentieth century[4], I accept that it has become an important institution in modern day, secular Australia. Because of the principles set out in section 60B and the desirability of having consistency in each year, I have decided that the father’s proposal is to be preferred in this case.
[4] My research has indicated that Father’s Day originated in Spokane, Washington, in the United States in 1909 and was formally recognised by proclamation of President Lyndon Johnson in 1966.
The issue of overseas travel
The mother proposes that the following order be made in respect of the parties entitlement to travel overseas with R:
That unless the parties otherwise agree, the father or the mother (as the case may be) be permitted during that parties entitlement to school holidays with R, to take him away from where he would normally reside during that time, upon a reasonable prior written notice to the other of that intent, and in the event of that intention, the father or the mother (as the case may be) provide to the other as soon as practicable, and no less than six weeks prior to that departure:
(a)a generalised itinerary and the telephone numbers at which R may be contacted during such absence;
(b)a copy of return tickets for travel (if applicable);
and in the event that there is a material change in that itinerary or of a telephone number, the father or the mother (as the case may be) forthwith notify the other of such change.
It is implicit in the mother’s position that she would be able to travel overseas with R upon giving six weeks notice to the father and providing him with the details as set out in the proposed order. For his part, the father seeks the following order:
That the Australia Federal Police place the name of the child R A B born on 1 February 1993 on the PACE alert system (Airport Watch List) in force at all International points of arrival and departure in the Commonwealth of Australia and maintain the said child’s name on the PACE alert system until further order of the Court or written agreement of both parties as witnessed by a solicitor.
Accordingly, it is the father’s position that R’s name should be placed on the Airport Watch List maintained by the Federal Police and that each proposed episode of overseas travel contemplated by either of the parties should be the subject of notification to the other and if necessary negotiation between the parties, but at all times the safeguard of R’s name remaining on the Airport Watch List should remain. It is implicit in the father’s position that he does not trust the mother and believes that there is at least some possibility of the mother removing R from the Commonwealth of Australia without reference to him and then failing to return the child to live in this country.
In order to explain the different positions of the parties, it is necessary to outline some of the history of the matter up until this point. The mother is a New Zealand citizen. Accordingly, according to principles of patriality, R himself is entitled to a New Zealand passport.
In late 2000, the mother applied for an Australian passport for R. In her application, she named the child as R A A. The letter from the Department of Foreign Affairs and Trade to Mr B advising him of the application was sent to Mr B’s parents’ former address. It is the father’s position that the mother was well aware of a more current address at which he could be contacted. The father alleges that this was an act of subterfuge on the mother’s part to circumvent his consent to the issue of the passport. When, through chance, he became aware of the application, he declined his consent. Ever since this time, it seems that he has been suspicious of the mother and her plans for overseas travel.
Notwithstanding the father’s objection to the issue of an Australian passport for R, in October of 2001, the mother obtained a New Zealand passport for him. Mr B’s consent was not required for this passport to issue. Again Mr B characterises this as an act of subterfuge on the part of the mother, which has heightened suspicions between the parties further.
Mr A operates a commercial diving and underground cabling business. This seems to be a fairly specialised enterprise and the nature of it require Mr A to work overseas from time to time. He has worked in Singapore in the past. The father believes that there was some possibility of Mr A working in Scotland in the past. The father remains fearful that Mr A may relocate his business out of Australia at sometime in the future and this will result in him losing contact with R. He is particularly fearful of Mr A setting up business in Singapore, which is not a signatory to the Hague Convention.[5]
[5] The Convention on the Civil Aspects of International Child Abduction signed at The Hague on the 25th of October 1980.
It is the mother’s position that she would like to be able to take R and her other children to meet Mr A at overseas locations where he is working from time to time. She believes that this would benefit R as he would be exposed to the stimulation of different cultures and customs overseas. It is her position that she and Mr A are well settled in Darwin, where they have purchased a home and they have no intentions to abandon their permanent residence in Australia. The mother would also like the opportunity to be able to take R to visit his maternal family in New Zealand from time to time.
In December of 2002 the mother travelled to Singapore for seven days with R, whilst Mr A took part in a two day course. The father did not formally consent to this travel, although during it R regularly telephoned him. The father did consent to another piece of travel for R to New Zealand. The unauthorised trip to Singapore has further heightened tensions between the parties, involving as it did the New Zealand passport, which has been issued to R.
Through his counsel, the father alleges that the mother’s behaviour in taking R to Singapore was in breach of the provisions of section 65Y of the Family Law Act, which prevent a party to a residence or contact order taking a child outside of Australia without the written consent of any other party to the orders. There is no evidence before me as to whether or not the mother herself was aware of the provisions of section 65Y. However, the father points to the provisions of earlier orders that were made by the Family Court at Darwin on the 5th of July 2001, which authorised the mother taking R to New Zealand in November/December 2001 as being evidence that the mother was aware of the legal formalities surrounding overseas travel for a child in R’s position.
It is as a result of all these factors that the father argues that a conservative approach should be taken to the issue of R’s travel overseas. He has deposed that he does not oppose R travelling overseas but wishes to have each proposal dealt with on a case by case basis. It is his position that because there have been attempts to deceive him in the past, it is only appropriate that he should be fully appraised of any travel in future and there be safe guards left in place to prevent any future unauthorised removals of R from Australia.
The mother’s position can be simply put. She argues that the restrictions as sought by the father are unnecessary and unduly restrictive. Of more importance, she believes that to do as the father proposes will doom the parties to further litigation in the future and that this will not be in R’s best interest.[6]
[6] See Family Law Act section 68F(2)(k)
Given the sensitivity of this issue, I propose to make the orders as sought by the father. In my view, given the past history of the matter, it is not unreasonable that the child’s name be placed on the watch list. The only draw back in this regard is that it will require the parties to negotiate with one another over any future proposed episode of travel. I am concerned that a lack of cooperation between the parties in future may impede the child’s prompt removal from the watch list if agreement is reached between the parties regarding overseas travel. This may lead to embarrassment and difficulty at an international exit point from Australia if, notwithstanding agreement, the child’s name remains on the list. It may also prove to be burdensome to the Australian Federal Police and other relevant authorities.
At the present time, the mother has no proposals for overseas travel to put forward. She has indicted that Mr A may have to go overseas at short notice. However, the evidence to date is such that Mr B is unlikely to refuse his consent if he is satisfied that R will return to Australia in future. In my view, notwithstanding these difficulties, it is appropriate that this issue be dealt with on a case by case basis. I am satisfied that the parties will be able to cooperate with each other and the necessary authorities in respect of the issue of travel if they do agree. In respect of travel to New Zealand, past experience has shown that the father has no difficulty with such travel. Further exigencies in respect of other countries may arise in future and different considerations may apply to those countries. In my view, it is appropriate that the parties should deal with those exigencies on a case by case basis along the guidelines set out by the Family Court in Kuebler & Kuebler[7] and in all the circumstances the safeguard of the watch list should remain.
[7] (1978) FLC 90-434
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 15 August 2003
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