ARCHIBALD & MCNAB

[2015] FCCA 1820

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARCHIBALD & MCNAB [2015] FCCA 1820

Catchwords:
FAMILY LAW – Parenting – parental responsibility – graduated increase in spending time with arrangements – Mother alleged Father left her and child stranded in (country omitted) by taking their passports and returning to Australia.

Legislation:

Family Law Act 1975, ss.4; 4AB; 60B, 60CA; 60CC; 61B; 61C; 61DA; 61DAA; 65DAC

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
MRR v GR [2010] HCA 4
L & T (1999) 25 Fam L R 590

Applicant: MS ARCHIBALD

Respondent: MR MCNAB

File Number: PAC 3628 of 2012

Judgment of: Judge Lapthorn

Hearing dates: 10 September 2014 and 27, 28 and 29 January 2015

Date of Last Submission: 20 March 2015

Delivered at: Brisbane

Delivered on: 9 July 2015

REPRESENTATION

Counsel for the Applicant: Ms Conti-Mills

Solicitors for the Applicant: Mahony Family Lawyers

Counsel for the Respondent: Ms Pender

Solicitors for the Respondent: Winn Legal

Counsel for the Independent Children's Lawyer: Mr Hunt

Solicitors for the Independent Children's Lawyer: Robertson Solicitors

ORDERS

1. That all previous parenting orders be discharged.

2. That the mother have sole parental responsibility for the child X born (omitted) 2009 and shall:

   (a)Provide the father with the name and address of the school that the child is currently enrolled in within seven (7) days of date of this order;

   (b)Provide the father within six weeks written notice of any intention to change the enrolment of the child from her current school along with details of the proposed school and the reason for any change and shall not proceed with the new enrolment until she has considered the father's written response to be provided within 14 days of receiving the notice;

   (c)Provide the father with copies of any reports from treating specialists recommending any non-urgent medical or dental therapy;

   (d)The mother shall arrange with the child’s school for the school to provide to the father copies of all school reports, Individual Education Plans, assessments, relevant notices regarding school or sporting functions and documentation for the purchase of school photographs, awards, merit certificates etc.

3. That the father forthwith provide to the mother an email address to enable the mother to provide the details as to the child's school in accordance with order (2) herein.

4. That the child live with the mother.

5. That the child spend time with the father as follows:

   (a)(Stage 1) from the date of these orders until 9 April 2016 as follows:

   (i)Each alternate Saturday for a period of two (2) hours for a period of three (3) months; thereafter

   (ii)Each alternate Saturday for a period of four (4) hours for a period of three (3) months; thereafter

   (iii)Each alternate Saturday for a period of eight  (8) hours for a period of three (3) months;

   (iv)For the purposes of the periods of time provided for herein the parties are to arrange change overs to take place at the (omitted) Contact Centre or such other service or location as agreed between the parties

   (b)(Stage 2) upon the conclusion of the periods contemplated in order (5)(a) until 9 January 2017 each alternate weekend for periods of eight (8) hours on each of the Saturday and Sunday with the parties to arrange change overs to take place at the (omitted) Contact Centre or such other service or location as agreed between the parties.

   (c)(Stage 3) upon the conclusion of the period contemplated in order (5)(b) until the commencement of NSW gazetted school term 1 2018 as follows:

   (i)Each alternate weekend  from after school Friday until 5 pm on Saturday;

   (ii)The father shall collect the child from school on Friday afternoon during the NSW Gazetted school holiday period terms and return the child at the completion of such time at a location as agreed between the parties and failing agreement at the (omitted) Contact Centre;

   (iii)During the NSW Gazetted school holidays the parties are to arrange change overs to take place at a location or service as agreed between the parties and failing agreement and subject to its availability the (omitted) Contact Centre.

   (d)(Stage 4)  Upon the conclusion of the period of time contemplated in order (5)(c) until the commencement of the NSW gazetted school Term 3 in 2018 as follows:

   (i)Each alternate weekend from after school on Friday until 5 pm on  Sunday;

   (ii)The father shall collect the child from school on Friday afternoon during the NSW Gazetted school holiday period terms and return the child at the completion of such time at a location as agreed between the parties and failing agreement the (omitted) Contact Centre;

   (iii)During the NSW Gazetted school holidays the parties are to arrange change overs to take place at a location or service as agreed between the parties and failing agreement and subject to its availability the (omitted) Contact Centre.

   (e)(Stage 5)That from the commencement of the NSW gazetted school Term 3 in 2018 as follows:

   (i)Each alternate weekend from after school Friday until the commencement of school the following Monday and should a public holiday fall on a Monday until the commencement of school on Tuesday;

   (ii)The father shall collect the child from and return the child to school during the NSW Gazetted school terms;

   (iii)During the NSW Gazetted school holidays the parties are to arrange change overs to take place at a location or service as agreed between the parties and failing agreement and subject to its availability the (omitted) Contact Centre.

   (f)At all such other times as agreed between the parties.

6. That after the commencement of the time provided for in Order (5)(a) (ii) on specified religious occasions for four (4) hours on no more than two (2) occasions each calendar year, (noting that additional times may be  agreed by the mother); The day and times to be nominated by the father, by the father nominating the specific religious event and providing no less than 28 days written notice to the mother in the communication book as per order (9) herein of his intention to spend time with the child on that nominated occasion. 

7. That notwithstanding orders (4), (5) and (6) herein the child spend time with the parents as follows:

   (a)With the father on Father’s day 2015 for two (2) hours as agreed and failing agreement 12 noon to 2pm;

   (b)With the father on Father’s day 2016 and each year thereafter for eight (8) hours as agreed and failing agreement 9am to 5pm;

   (c)With the mother on Mother’s day each year for eight (8) hours as agreed and failing agreement 9am to 5pm;

   (d)With either parent on other special days as can be agreed between the parents.

8. That in the event the parties are unable to reach any agreement for the child to spend block periods of time with the father during school holidays after the commencement of the Gazetted school Term 3, 2019 they are to do all things necessary to consult with a Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving that dispute and to share the cost of same equally.

9. That the mother and father communicate by way of a hard copy communication book that shall be used to share information about significant events or to ask questions in relation to the child and provided that no other person shall be permitted to use the communication book.

10. That the mother and father forthwith provide to each other a mobile telephone number to be used for the purposes of urgent communication between the mother and father in relation to the child.

11. The mother and father forthwith advise the other by text message or other agreed mode of communication as to urgent medical attention /hospitalisations for the child.

12. That the mother and father are hereby restrained from denigrating the other or members of the other’s family to or in the presence or hearing of the child and must ensure that no other person does so.

13. That each party (Mr McNab born on (omitted) 1978 and Ms Archibald born on (omitted) 1988) their servants and/or agents be and are hereby restrained by injunction and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 from removing or attempting to remove or causing or permitting the removal of the said child X born on (omitted) 2009 from the Commonwealth of Australia until she attains the age of 16 years.

14. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by continuing the placement of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist until the child attains the age of 16 years or until the Court orders its removal.

THE COURT REQUESTS:

1. That the mother give consideration to arranging with her general medical practitioner a referral for counselling to assist her with the child spending time with the father pursuant to these orders.

Notation: Orders 5(c)(ii) and 5(d)(ii) have been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to show NSW Gazetted school terms in lieu of NSW Gazetted school holiday period.

IT IS NOTED that publication of this judgment under the pseudonym Archibald & McNab is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3628 of 2012

MS ARCHIBALD

Applicant

And

MR MCNAB

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of X who is five years of age have been embroiled in a bitter dispute as to her future parenting since they separated in August 2011.  They have asked the court to make parenting orders.  Despite their dispute, to their credit, they managed to reach agreement at the final hearing that the child should live with the mother and start spending unsupervised time with the father.  They remain in dispute however as to the speed at which the child’s time with her father should increase.  The mother seeks an order that she have sole parental responsibility for the child however the father has asked for an order that the parties have equal shared parental responsibility.  The child was represented by an Independent Children’s Lawyer (ICL) at the hearing.

Background

1. The applicant mother is 26 years of age having been born on (omitted) 1988.  The respondent father was born on (omitted) 1973 in (country omitted).  He is 42 years of age.  He came to Australia as a refugee in 1999.  The parties married in (country omitted) on (omitted) 2007.  The following month the father returned to Australia.  The mother joined him in Australia in September 2008.  They then commenced living together in a Sydney suburb.  X was born on (omitted) 2009.

2. In September 2010 the parents and child travelled to (country omitted) and returned to Australia in December of that year.  The purpose of this trip was for the father to accompany his brother to (country omitted) for medical treatment.  The parties again travelled to (country omitted) on (omitted) August 2011 however their marriage broke down a few weeks later.  The circumstances surrounding the breakdown of the marriage were disputed by the parties.  I will address this dispute later in the judgment.  For the purposes of this background however, the mother and child remained in (country omitted) and the father arrived back in Australia on (omitted) August 2011.  The mother alleged that the father had retained her and X’s passports effectively stranding her and the child in (country omitted).  The father denied this.  There was no dispute however that the father cancelled the return air tickets for the mother and child on his return to Australia.  In July 2012 the mother obtained a passport for herself.  The following month she returned to Australia, leaving the child with her family in (country omitted), and applied for an order from this court to have a passport issue for the child notwithstanding the consent of the father had not been obtained.  That application was successful on her ex parte application.  The mother returned to (country omitted) to collect the child.  Upon the child’s return to Australia she has lived in the mother’s primary care.  The child did not spend any time with the father until February 2013.  Thereafter time has been supervised at a contact centre.

3. Federal Magistrate Harman, as his Honour then was, made interim orders on 22 August 2012 in the absence of the father providing in effect that the mother have sole parental responsibility for the child; that a passport issue for the child; that upon the child’s return to Australia she live with the mother; that the parents be restrained from again removing the child from Australia; and that the child’s name be placed on the airport watch list.  A further order was made restraining the father from leaving Australia and that his name be placed on the airport watch list.  This order was to be discharged on the next court date after the child had been returned to Australia however was not actually discharged until orders made 6 March 2013.   

Material Relied on

1. In support of her application, the Applicant mother relied on the following material:

   a)Her Initiating Application filed 21 August 2012;

   b)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 13 December 2012;

   c)Her affidavits filed:

   i)17 January 2014, and

   ii)28 July 2014.

2. The Respondent father relied on the following material:

   a)His Response filed 30 November 2012;

   b)His affidavit filed 6 March 2014;

   c)The affidavit of Mr A, filed 25 June 2014; and

   d)The affidavit of Ms M filed 25 June 2014.

3. The ICL relied on the following material:

   a)The Family Consultant Memorandum to Court by Family Consultant Ms D dated 14 December 2012; and

   b)The Family Report of Dr L dated 11 September 2013.

4. A number of documents were tendered into evidence.[1]

   [1] C1- Family Report of Dr L dated 11 September 2013.

Competing Applications

1. During the hearing each party tendered a minute of order sought.  The mother in effect sought orders that would provide for her to have sole responsibility for X and for the child to live with her.  She proposed that the father’s time with the child move to being unsupervised on alternate Saturdays and gradually increased so that after twelve months the father would move to overnight time being from after school Friday to Saturday at 5pm.  This arrangement would continue for a further 12 months when the father’s time would increase to two overnights.  She did not seek any further increase in time.  There was provision in her orders for time to be spent between the child and father on special occasions and a restraining order preventing either party taking the child out of Australia until she turns 16 years of age.  The written submissions of the mother suggested that she was in agreement with the ICL’s Stage 2 proposal as set out in the written submissions from counsel for the ICL.  That stage provided for two consecutive days but not overnight on alternate weekends for a period of 12 months.  Although that did not appear in the mother’s minute of order I have proceeded on the basis that she was supportive of the ICL’s position in that regard.

2. The father agreed that the child should live primarily with the mother but argued for the parents to have equal shared parental responsibility.  He also proposed a graduated increase in time with the child but at a much faster rate than that proposed by either the mother or the ICL.  His proposal was that he would spend time each Saturday with the child: three months for two hours; then three months for four hours; and then six months for eight hours.  By the conclusion of this regime his proposal would see the child spend time with him on alternate weekends from Friday after school to Saturday at 5pm.  This would continue for 12 months when his time would increase by one day to conclude on Sundays at 5pm for a further 12 months.  After this period the time would increase to Monday before school.  The father also proposed that from 2018 the child would spend holiday time with him.  His minute of order also provided for special occasions.  The father’s minute of order also provided for the restraint on taking the child out of Australia until she was 16 years of age.

3. The ICL sought orders for the mother to have sole parental responsibility for the child and for the child to live with the mother.  The ICL’s regime for a graduated increase in time for the child with her father provided for a 12 month period of time on alternate weekends as follows:  three months for two hours; three months for four hours; and six months for eight hours.  After this period the time would remain eight hours a day but be every alternate Saturday and Sunday for 12 months.[2]  After this period the time would increase to one overnight each alternate weekend for a further 12 month period which would be followed by another 12 month period of two overnights.  The fifth and final stage of this graduated regime would see the child spend alternate weekends with the father from after school Friday to before school Monday or Tuesday if Monday is a public holiday.  The ICL did not make any provision for the child to spend school holidays with the father.  The ICL was supportive of the restraint on the parents taking the child out of Australia until she turns 16.

   [2] The minute of proposed orders provided with the written submissions differed from exhibit ICL 2 in that initially the ICL sought an 8 hour block each Saturday rather than two consecutive days each alternate weekend.  The amendment is consistent with the oral evidence of the family report writer.

The Evidence

1. Throughout these reasons I will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

2. The credit of each party has been called into question.  Having seen the parties in the witness box and considered the written material I have regrettably concluded that neither party was entirely truthful in their evidence.  Although the narrowing of the issues has meant it is not necessary to determine every disputed question of fact it will be necessary for me to address the significant disputes between the parties in order to determine the question of parental responsibility and the level of trust between the parties that may have any impact on the way in which the child’s time with the father is increased.

Events from 3 August 2011 until 10 September 2012

1. The parties and child left Australia on 3 August 2011 to travel to (country omitted).  Soon thereafter they were divorced.  The mother alleged that she went to her family with the child but the father retained her passport and the child’s passport in effect preventing her from leaving (country omitted) with the child.  The father denied taking or retaining the passport.  He asserted the mother’s evidence was a fabrication designed in part to exclude him from the child’s life.

2. The father’s counsel argued that the court should prefer the father’s evidence.  It was submitted that a consideration of the documents produced from the Department of Foreign Affairs and Trade (DFAT) show that the mother did not take up opportunities for assistance from the Australian Consulate in September 2011.  The consulate became aware of the mother after receiving an email on 26 September 2011 from Ms C who is a cousin of the mother through marriage.  Ms C lives in the (country omitted).  The email requested help for the mother asserting that the father had kidnapped the mother and child and had left them deserted and destitute in (country omitted).  It was alleged that the father had taken all of the mother’s identity documents such as her permanent residency card, passport and birth certificate.  It was alleged that the mother was living in extreme poverty with the sick child and that the father had left them stranded with no travel documents, no money and no way of returning to Australia.  Two days later the embassy contacted the mother and ascertained that she and the child were well and living with the maternal grandparents in (country omitted).  She did not request financial assistance.  She advised that she wanted to return to Australia with the child but that the father had taken their documents.  Advice was given on how to go about obtaining replacement documents.  The mother said she would contact the embassy if she needed further consular assistance.  Ms C was advised of this by an email from consulate staff.  The DFAT records suggest the mother’s next contact with them was not until 8 February 2012 when she visited the consulate to request certified copies of her Australian documents in order for her to obtain documents from Australia for her daughter.  A few days later she notified the consulate to advise that her husband was in (country omitted) and that she believed that someone was following her whenever she left her parent’s home.  On 9 April 2012 the mother again contacted the consulate advising she had received authorisation to obtain a new (country omitted) passport.  The DFAT file was closed in June 2012 with a notation that the matter was a passport matter.  

1. I do not accept counsel’s submissions that the email from Ms C advised consular staff that the father had taken all the mother’s identifying documents.  The email stated “She managed to keep her Australian driver’s license and medical card because her husband did not know that they were in her purse.”  This was consistent with the mother’s evidence.  When counsel submitted that “the wife was adamant under cross examination by Counsel for the father that the husband had all her papers” she was incorrect.  The mother’s evidence was that she had the other documents in her shoulder bag.

2. I also reject the father’s submission that the mother did not take up the offers of assistance offered by the consulate.  Although it is clear the mother did not act with any haste, the documents from the DFAT in exhibit ICL 3 show that she remained in contact with the consulate from time to time and used their services to obtain the documents she needed to assist in her return to Australia.

3. The father gave evidence that the mother had not only her own passport and that of the child, she also had his passport.  He said that she only returned it after a confrontation outside her family’s home.  This was corroborated by his brother.  The mother denied this.  Counsel for the father submitted that although the mother denied the allegation in the cross-examination conducted by her, when she was cross-examined by counsel for the ICL the mother conceded she had given the father’s passport back to him.  With respect, Ms Pender is mistaken in that submission.  No concession of that nature was made by the mother.

4. It was also submitted that the mother’s evidence that she was in a poor financial position whilst in (country omitted) should be rejected.  It was put to the mother that she received a financial settlement as part of the divorce.  The mother denied this saying she signed the receipt under duress.  I found the mother’s evidence in this regard less than convincing and do not accept it.  Notwithstanding that, there was insufficient evidence to find that the financial settlement left her in a strong financial position.

5. On the balance of probabilities, and save where I have specifically found otherwise, the mother’s version of events is to be preferred and the father’s rejected.  Given her relatively poor financial position it seems incredulous she would go to the effort of obtaining copies of identity documents through the consulate then travel to Australia on her own to obtain an order for a passport for the child only to return to (country omitted) promptly to collect the child and then again return to Australia promptly if she had the passports the whole time.  The father’s conduct in cancelling the mother’s and child’s return tickets not only suggests he would do nothing to assist her return to Australia it smacks of an attempt to ensure they did not return.  His application to DFAT for a Child Alert Request on 20 August 2012 leads me to conclude that he did not want this child brought back to Australia.

Allegations of Family Violence

1. The mother alleged that she had been a victim of family violence during her relationship with the father and by his actions in retaining her and the child’s passports effectively preventing their easy return to Australia after separation.

2. Family violence is defined in s.4AB of the Act as follows:

   (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

   (2) Examples of behaviour that may constitute family violence include (but are not limited to):

   (a) an assault; or

   (b) a sexual assault or other sexually abusive behaviour; or

   (c) stalking; or

   (d) repeated derogatory taunts; or

   (e) intentionally damaging or destroying property; or

   (f) intentionally causing death or injury to an animal; or

   (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

   (3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   (4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

   (b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or

   (c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

   (d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

   (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

3. The mother’s evidence was that after they were married the father would become angry with her, initially weekly but over time on a daily basis.  She alleged he would scream at her and hit her with an open hand over her face and body.  She said that the child had witnessed these assaults.  Her evidence was that this occurred both in Australia and in (country omitted).  The mother did not go to a doctor or seek any other form of medical health.  She never approached the police in relation to her allegations and the police had never attended upon their home as a result of any other person notifying them about violence in the home.  The father denied the allegations.  Whilst I accept that it is not unusual for victims of family violence to not report the violence, I am not satisfied the mother has established on the balance of probabilities that the father has been physically and verbally violent to her.

4. The mother also gave evidence of being controlled by the father.  By way of examples she gave evidence of not being allowed to learn English; of not being allowed to go out of the home on her own without the father being with her; and of him restricting her ability to telephone her family or form friendships.  These allegations were also denied by the father. 

5. The mother first attended classes in English during 2009 and other courses after the birth of the child.  Although the father accompanied the mother and sat with her in the class room on her first day he did not persist with that.  The mother said that she felt embarrassed by his presence in the class as she was the only one who had someone else there.  Exhibit M1 was an exercise book the mother said she bought when she arrived in Australia and was used by her to practice her English.  She called it her school book.  Her evidence was that she only wrote English words in this book.  An examination of the book shows that many entries are in (language omitted).  Some appear to be alongside English words suggestive of translation exercises.  Other pages appear to contain extensive prose in (language omitted), one page of which has been translated into English and formed part of Exhibit F1.  The translation would suggest that the mother was writing to her yet unborn child in a diary format and, among other things, wrote that she was attending English language school every day; that she was afraid and nervous on her first day; and the father decided to stay with her that day despite the school not allowing it.  The writing would suggest that the father’s presence in the class room was only on the first day but that he would take her to and collect her from the school each day.  The mother denied writing this and all other (language omitted) in the exercise book including the (language omitted) that appears to be part of the English translation exercises.  I am unable to accept her evidence in this regard.  Although I accept the book had long been out of her possession until the court hearing it does not make sense that she used the book to help her English studies but not write (language omitted) next to English words.  This blanket denial leads me to find that her evidence as to the other writing of the (language omitted) in the book was not truthful.

6. The father also taught the mother to drive and arranged for her to have professional driving lessons. She obtained her driver’s licence. The mother conceded that not all of the shopping was done by them as a couple and that she did go shopping on her own from time to time. The father had given the mother a phone card so that phone calls to her family in (country omitted) would be cheaper. On this issue I preferred the evidence of the father to that of the mother. I am not satisfied that the father conducted himself, in relation to the examples given by the mother, in a controlling way as contemplated by s.4AB.

7. Counsel for the mother argued that the father’s conduct in retaining the mother’s and child’s passports deprived them of their liberty as was contemplated in s.4AB(2)(j). I am not satisfied that the retention of the passports amounted to a deprivation of liberty, certainly not in the literal sense as the mother was able to obtain replacement passports. This conduct however was controlling. Retaining the passports made it more difficult and more expensive for the mother to return to Australia with the child. It was a deliberate act on the father’s part and as such was meant to be controlling of her. I am satisfied this conduct on his part falls within the definition of family violence.

8. The father alleged that the mother had been threatening of him and in particular had threatened to kill him.  He said a number of text messages sent in (language omitted) corroborated his allegation.  The mother denied sending the text messages which she conceded after being shown a print out of the purported messages were threatening.  Her evidence was that the father retained her mobile phone on occasions.  No phone was produced to corroborate the print out. The father’s evidence was that his phone was in (country omitted) with his brother.  There is insufficient evidence to enable me to find the texts said to have been exchanged between the parties were sent by the person alleged to have done so.  I therefore cannot make a specific finding in that regard.    

9. Having said that both parties described a volatile relationship certainly at the point of and leading up to separation in (country omitted) but also at other times during the relationship.  I have no doubt they have expressed themselves in words derogatory of the other and at times this would have occurred in the presence or hearing of the child.  Whether it was to the extent they each claimed I am unable to determine.  Regardless, it is clear that their lack of trust in the other is not likely to dissipate anytime soon and there is potential for ongoing conflict should they come into contact with each other.

10. I find that the father was controlling of the mother in retaining her and the child’s passports and that that action amounted to family violence.  I am also satisfied that the parents have been derogatory of the other in the presence of the child.

Legal Principles

1. All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975.  In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[3] and must consider the best interests of the child as the paramount consideration.[4] 

   [3] S.60B

   [4] S.60CA

2. The objects of Pt VII are to ensure that the best interests of the child is met by both parents having a meaningful involvement in their child’s life; that the child is protected from physical or psychological harm; that she receives adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[5]  Section 60B(2) sets out the principles underlying those objects.  Unless it would be contrary to a child’s best interests the principles are:

   a)Children have a right to know and be cared for by both their parents;

   b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture.

   [5] S.60B lists the objects and principles for Pt VII.

3. The legislative framework which must be followed in all parenting cases,[6] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[7]  This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[8]

   [6] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [7] S.61DA

   [8] S.61DA(2) & (4)

4. In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents.  In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[9]  If the court finds that equal time is not in the child’s best interests or  that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[10]

   [9] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4

   [10] S.65DAA(2)(c) & (d)

Determining the best interests of the children – the s.60CC considerations

1. The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC.  In order to limit duplication I propose to group together a number of these factors.   

The children’s relationships

The benefit to the child of having a meaningful relationship with both of the child’s parents;[11]

The nature of the relationship of the child with:

(i)each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child);[12]

The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child[13]

The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from:

[11] S.60CC(2)(a)

[12] S.60CC(3)(b)

[13] S.60CC(3)(c)

(i)     either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living[14]

[14] S.60CC(3)(d)

1. All parties agree that the child’s primary relationship has been and remains with her mother.  There is no dispute that the child will continue to live with her.  The mother though, has been reluctant to appreciate the benefit to the child of having an ongoing relationship with the father.  Her evidence was that the child has been fearful of him.   She denied influencing the child to say that the father was naughty, as was recorded in notes from the contact centre.  The mother’s evidence was that the child had formed her own view from her experiences of the father and his family.  Counsel for the father argued that the mother’s failure to take the child to the contact centre on at least nine occasions and her failure to take the child to the centre for an extra hour of time with the father pursuant to orders made 10 September 2014 are indicative of her failure to support the child’s relationship with the father.  I accept the mother’s evidence that she misunderstood the requirement for the extra hour of time that was provided for in the orders.  I also accept that the child would not have been well on some of the occasions when the mother did not take the child to the centre but overall I am satisfied that initially the mother was not motivated to promote a positive relationship with the father.  She remains reluctant.  I am satisfied that this reluctance will continue for some time and there is merit in the arguments put by her counsel and counsel for the ICL that any increase in time between the father and child should be graduated at a pace that the mother will be able to cope with.

2. The family report writer observed the child with the father in August 2013.  She observed that although initially the child did not appear to acknowledge the father after the father had shown her some photos she began conversing with him spontaneously. Their interaction was assessed as being comfortable and relaxed.  At the time of this interview the child had been seeing the father for about eight months supervised at the contact centre after a period of around 17 months of not spending any time with him.

3. The notes from the contact centre suggest that although there have been some occasions where the child has initially presented as reluctant to see her father after engaging with him for a while she has appeared to be relaxed and enjoyed her time with him.  The notes suggest that she has been affectionate with the father seeking out a cuddle and a kiss.  On at least one occasion she was reluctant to leave her father.

4. I am satisfied that the child has a good relationship with the father that has developed over time and benefited by having the supervision.  The mother during the hearing formed the view that supervision was no longer necessary.  This decision was no doubt arrived at after hearing the father would agree to the child being placed on the Airport Watch list until she was 16 years of age.

5. The family report writer cautioned against moving too quickly in increasing the child’s time with the father.  She was concerned that if the time increased too quickly there was a risk the child’s relationships with either her mother or father could be compromised.  She opined that moving too quickly could be destabilising for the child.

Risk of harm

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[15]

Any family violence involving the child or a member of the child’s family[16]

If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:

[15] S.60CC(2)(b).  S.60CC(2A) provides that in applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).

[16] S.60CC(3)(j)

a)The nature of the order;

b)The circumstances in which the order was made;

c)Any evidence admitted in proceedings for the order;

d)Any findings made by the court in, or in proceedings for, the order;

e)Any other relevant matter [17]

[17] S.60CC(3)(k)

1. There are no family violence protection orders in place nor have there been.

2. I have found that the father has engaged in controlling behaviour directed to the mother by retaining her passports and both parties have been denigrating of the other.  There are however no reported incidents of family violence in recent times.  The risk of conflict in the future is likely to be diminished if the parties do not come into contact with each other.  It is for this reason that the ICL proposes handovers take place at a contact centre or the child’s school.  Both parties agree that handovers should take place at such venues but each also make provision for times when this would not be possible.  The father suggested handovers occur at a railway station if the contact centre is not available.  The mother proposed an order providing for a resolution of handover venues if the parties are unable to agree.  That proposal would see the mother give the father three venues from which he would choose one and notify her by text message.  It is not possible to make provision for all scenarios when drafting orders particularly in cases involving children as young as X.  I will make orders that provide for handovers to take place at either a contact centre or the child’s school.  If neither are available the parties will have to address the issue at the time.

The child’s views

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views[18]

[18] S.60CC(3)(a)

1. Given the child’s young age any views expressed by her would not be determinative of the outcome of these proceedings.  Although the mother had given evidence of the child being fearful of the father the notes from the contact centre suggest a warm relationship between them.

Practical difficulties

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis[19]

[19] S.60CC(3)(e)

1. Attending at contact centres adds cost and inconvenience to parties, however in light of the lack of trust and history of conflict between the parents I am satisfied that until the child can be collected from and returned to school this impost is necessary and not overly burdensome on the parties.

Parental capacity and responsibility

The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs[20]

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child[21]

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents[22]

[20] S.60CC(3)(f)

[21] S.60CC(3)(ca)

[22] S.60CC(3)(i)

1. The family report writer opined that the mother had been resourceful in providing for the child whilst in (country omitted) and in securing her return to Australia and was meeting the child’s needs.  She expressed concern that the mother’s lack of trust in the father could compromise her parenting unless she was satisfied as to the child’s safety and that she would be returned to her.  During the mother’s evidence it was evident that although she could finally countenance unsupervised time with the father she remained concerned about X’s safety.  The agreement to have the child’s name of the Airport Watch List has given her some reassurance but I am satisfied that unless the graduated increase in the child’s time with the father is implemented conservatively the mother will not cope with the change which may have a significant impact on her parenting capacity.

2. The father’s retention of the child’s passport preventing the child’s easy return to Australia is an example of the father not exercising his parental responsibility appropriately and in a child focused way.  Nevertheless since the child has returned to Australia and orders have been made for him to see the child he has complied with the orders and attempted to re-establish his relationship with his daughter.  He pays child support as assessed.

3. The father has not cared for the child on an unsupervised basis since the child was very young and the mother was attending English classes.  The notes from the contact centre would suggest that he has been child focused and age appropriate with her whilst supervised.  This restricted environment of course does not provide him the opportunities to more fully meet the child’s day to day needs.  The mother’s distrust of the father will not be alleviated until some time has passed with the child spending positive unsupervised time with him.

Background issues

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant[23]

[23] S.60CC(3)(g)

If the child is an Aboriginal child or Torres Strait Islander child:

(a)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(b)the likely impact any proposed parenting order under this Part will have on that right[24]

[24] S.60CC(3)(h).  S.60CC(6) provides that for the purposes of paragraph (3)(h), that an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture

1. The child’s parents are from (country omitted) and follow the (omitted) faith.  They will both be able to share their cultural and religious background with her.  There is nothing to suggest this would be compromised by either parent.

Limiting further proceedings

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child[25]

[25] S.60CC(3)(l)

1. It is difficult to predict the long term outcomes for children as young as X.  In cases where there is little to no trust between the parents and a history of significant conflict there is always a risk of a breakdown of arrangements.  The father, quite understandably, is keen to move forward with his relationship with the child as quickly as possible.  I share the family report writer’s concern that if his time with her is increased too quickly there is a risk that the mother will not cope and her parenting may be compromised.  This would not be in the child’s best interests and is likely to see the parents embroiled in yet further litigation.  It is for this reason that a more conservative approach is warranted.

Presumption of Equal Shared Parental Responsibility

1. For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[26]  Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[27]  When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[28]  A major long-term issue in relation to a child means an issue:

   [26] S.61B

   [27] S.61C

   [28] S.65DAC

   about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a) the child’s education (both current and future); and

   (b) the child’s religious and cultural upbringing; and

   (c) the child’s health; and

   (d) the child’s name; and

   (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[29]

   [29] S.4

2. The mother seeks an order that she have sole parental responsibility for the child.  The orders she seeks makes provision for the mother to keep the father informed of any decision she might make to change the child’s school enrolment prior to any change and to take into account his views before making a final decision.  The ICL is supportive of the mother’s position.  The father has asked for an order for equal shared parental responsibility.

3. Given my findings as to family violence I am satisfied that the presumption does not apply.  Although the presumption may not apply the court must still give consideration to what order would be in the child’s best interests.

4. Whilst I am satisfied the father would be able to offer much to the child by having an input into decisions for her long term future the level of distrust between the parties, particularly from the mother’s part, and their lack of communication means that any future attempt to work together to make decisions for this child will be fraught with difficulties.  It is for this reason that I am satisfied that a sole parental responsibility order should be made.  As the child will be living primarily with the mother the order should be in her favour and in the terms she has sought.

Consideration of appropriate spending time with arrangements

1. The parties agreed that the child should live primarily with the mother.  They also agreed that the child should start spending unsupervised time with the father and that the time should gradually increase.  They are however significantly in dispute as to the pace of that increase.

2. The family report writer urged the adoption of a conservative approach.  She was concerned as to the mother’s ability to cope with an increase in time if that increase occurred too quickly.  Her evidence was that the social science literature illustrates that in cases such as this, a child is more likely to cope if any increase is gradual.  In her view it was important for the child’s sense of stability to proceed cautiously so as to not take the child out of her comfort zone.  The report writer was in general agreement that the proposal of the ICL would provide the child the opportunity to adjust to changes over time in a way that would not bring about confusion for her.  I put to the report writer that her opinion could be encapsulated as: hasten slowly so as not to return to the beginning.  She agreed.

3. The mother argued that although the ICL’s proposal would see the chid turn 10 before she moves to a three night arrangement with the father the level of communication between the parents is so poor that there is bound to be difficulties of a practical nature between the households such as getting the right school items transferred.  Whilst there is merit in this argument that needs to be weighed against the benefit to the child of having both parents involved with her schooling.  The report writer opined that if the child was to spend from after school Friday to before school Monday with the father the potential for conflict would be minimised and enable both parents to make themselves known to the teachers.  In her view many children like their school friends to see both mum and dad dropping them off at school.  I accept the opinion of the family report writer and find that it would be in the best interests of the child for her to ultimately move to a three night weekend with the father.

4. The father argued that the timeframe proposed by the ICL and the family report writer was glacial in its slowness and appeared to be based on an acceptance of the mother’s position and of the status quo brought about by the mother’s actions.  Although I have not accepted all of the mother’s evidence I have accepted her evidence that the father retained her passport and the passport of the child.  This was a significant event in their lives and to this day clouds her ability to re-develop any trust in the father.  Although she has come some way towards accepting the child will spend time with the father unsupervised, if the amount of time is progressed too quickly there is a real risk that she will not cope with the decision with a potential for the total breakdown of the orders.  This would not benefit the child in any way and may set back the father’s desire to continue to build his relationship with her.

5. When I consider all of the factors raised above I am satisfied that the increase in time does need to be measured and proportional.  The father’s proposals are, with respect, understandable given his desire to spend as much time as possible with his daughter but too optimistic.  The mother, whilst having made progress in her position, appears to remain too reluctant to advance the progression of the child’s time with the father.  I have rejected the time frames suggested by each of them.

6. The first stage proposed by the ICL would see the child move from supervised time to unsupervised and increase from two hours to four hours after three months.  After a further three months at four hours the time would increase to eight hours.  It was proposed that this eight hour period remain in place for six months before moving to stage two.  I am not satisfied there is much to be gained in waiting six months before progressing to stage two.  The second stage provides for consecutive days of eight hours duration but no overnights.  The length of the day remains the same as the last part of stage one.  It was proposed that this last for 12 months.  In my view the last part of stage one should be for three months.  I note all parties agreed with a six month timetable for this stage but their progression to stage two differed.  The father’s proposal was for the time to take place each Saturday rather than the alternate Saturdays that the ICL and mother argued for.  In determining a graduated increase it is important to look at the overall outcome as well as the potential consequences of each stage.  I propose to adopt a variation of the ICL’s proposed stage two.  Given the length of the time spent per day will not change it is not necessary to wait a full six months before transitioning to the next stage.

7. I am persuaded that the child would benefit from spending consecutive days with the father before moving to overnight time.  This would help with the child’s eventual adjustment to the overnight time by having spent considerable time with him in close proximity.  The ICL argued that this arrangement should continue for 12 months.  The family report writer clearly cautioned a conservative approach.  Whilst I accept that, there is no particular reason why 12 months is to be preferred over another lengthy but shorter period of time.  In my view nine months of two consecutive days will afford the child the opportunity to be more comfortable with seeing the father for extensive periods of time.  By the end of that period she would have been seeing the father for eight hour blocks at a time for twelve months (nine months of them on consecutive days) and have turned seven years of age.  The mother would have also had time to get used to the increased time.  It is for this reason that I propose to make orders that would provide for the transition to the third stage after nine months of stage two.  This would see the child commence spending overnight time with the father in January 2017.  In order to link future changes to a rhythm more easily understood for the child I will make the orders reflect the transition to increased time coincide with the commencement of school terms.  This would mean slightly more than the nine months but should be more readily understood by the child.

8. In my view the child’s overnight time with the father should remain at one overnight for around 12 months so as to afford the child the opportunity to get used to spending a night away from her primary carer: her mother.  The transition though from two to three overnights would not in my view require another twelve month period.  By the time the child has spent twelve months having one night with her father each alternate weekend she would be used to being away from her mother.  If there is no conflict between the parents the mother should by then start to feel less anxious about the child’s time with the father.  In my view the child would benefit from spending around six months, or two school terms, of two nights to adjust to the increased time with the father before progressing to three nights.   An opportune time would be the start of term three 2018.  The child will be close to nine years of age by then.

9. The orders I propose to make would still be considered glacial by the father given his keenness to have time increased.  At this point in time the mother is likely to perceive the orders as increasing time too quickly.  In my view each stage allows the child time to adjust to the changes and the mother time to become less fearful of the father’s motivations.  The mother would be assisted in this by undergoing counselling as proposed by the ICL.  The order as drafted however stands alone.  In other words it is not conditional upon the orders providing for the child to live with the mother.  In L & T[30] the Full Court of the Family Court held that the court did not have power to make such an order unless it formed part of a condition of what would now be described as a live with or spend time with order.  All parties agreed that the child should live with the mother.  Neither the mother nor the father sought orders for the child’s residence with the mother be subject to the mother undergoing counselling.  Although I will not make the order sought by the ICL, I will note in the orders that the counselling for the mother is recommended.  The ICL’s order also provided for the mother to take the child to counselling.  The court does have power to make such an order if satisfied that it is in the child’s best interests.  The family report writer had recommended in her report and confirmed in her oral evidence that each of the parents would benefit from counselling but did not make a recommendation for the child to receive counselling.  Neither the ICL nor the parties addressed this issue in their written submissions.  Accordingly I will not make that order.

   [30] (1999) 25 Fam L R 590

10. The father sought as part of his orders provision for block holiday time during school holidays from 2018.  This proposed order was in the context of the child having had overnight time from 2016 if his proposed orders were accepted.  The orders I propose to make will not see the child spend three nights away from her mother until the middle of 2018.  This issue was not addressed in any of the submissions received.  In my view no provision for school holiday time should be made at this time as there are too many variables as to how the child and mother will cope with extended block periods with the father.  I will however make provision for the parties to engage in alternative dispute resolution once the child has spent twelve months of the Monday to Friday weekends so that they can address appropriate holiday arrangements. 

11. The father’s minute of order also made provision for special occasions such as Father’s and Mother’s Day along with birthdays.  These were not included in the minutes of orders of the mother or ICL.  Neither did they address them in their submissions.  These days fall on Sundays and can be accommodated easily without disruption to a child’s schooling or routine.  In my view the child would benefit in spending some time with her father on Father’s Day and her mother on Mother’s Day and will make orders accordingly.  I won’t make specific provision for birthdays despite the merit in doing so.  Arrangements to spend time midweek during school term can cause conflict.  In time these parents may develop more trust such that they will be able to make special arrangements.  In the meantime the father will be able celebrate occasions with the child on the weekend near to the special event.

12. The father also sought a different order to the ICL and mother in relation to religious holidays.  His counsel however did not address the basis of the specific order he sought.  In my view the ICL’s proposed order would cover the holiday contemplated by the father and will make an order as proposed by the ICL.

13. For these reasons I make the orders set out at the commencement of this judgment.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Associate: 

Date:  9 July 2015

C2 - Family Consultant Memorandum to Court by Family Consultant Ms D dated 14 December 2012.
F1 – Translation of (language omitted) text annexures of the Respondent father’s affidavit filed 6 March 2014.
M1 – Mother’s ‘school’ book - tagged pages.
F2 – Photos of mother, father and child on excursion in Australia.
F3 – Photo of mother and child at (omitted).
F4 – Photo of father feeding the child.
F5 – Photo of the father and child at his work.
F6 – Photo of the mother and child at father’s place of study.

F7 – Photo of the father and child at the child’s first birthday.
F8 – List of telephone numbers, highlighted and ticked.
ICL1 – Affidavit of Applicant mother filed 21 August 2012.
F9 – Respondent father’s proposed minute of order, with hand amendments.
ICL2 – Independent Children’s Lawyer’s proposed minute of order.
M2 – Applicant mother’s proposed minute of order.
ICL3 – Bundle of documents prepared by the Independent Children’s Lawyer.