Arnold and Crawley

[2016] FamCA 81

FAMILY COURT OF AUSTRALIA

ARNOLD & CRAWLEY [2016] FamCA 81

FAMILY LAW – CHILDREN – With whom a child spends time – Parental Responsibility – Best interests of the child – Where the child has spent no time with the father for a substantial period of time – Unsatisfactory proposal to reintroduce time – Issue of international travel.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA.

Crawley & Arnold [2015] FCCA 2261(unreported)
Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346; (2007) 26 Fam LR 422
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Mazorski & Albright [2007] FamCA 520
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Arnold

RESPONDENT: Ms Crawley

FILE NUMBER: SYC 4091 of 2015

DATE DELIVERED: 17 February 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 14 December 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Phillip A Wilkins & Associates

SOLICITOR FOR THE RESPONDENT: Di Lizio & Associates

Orders

PENDING FURTHER ORDER

1. Orders 4, 6, 7, 8, 9 and 10 of the orders made on 30 June 2015 in the Federal Circuit Court of Australia be discharged.

2. Pending further order, each party and their agents are restrained from removing or attempting to remove or causing or permitting the removal of the child B (female) born … 2007 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Arnold & Crawley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 4091  of 2015

Mr Arnold

Applicant

And

Ms Crawley

Respondent

REASONS FOR JUDGMENT

Introduction

1. In an Application in a Case the father seeks to change the interim parenting arrangements for the only child of the parents, B, a little girl of six.

2. In his Amended Application in a Case filed 18 November 2015, the father sought that the previous interim parenting orders be discharged, that the parents have equal shared parental responsibility for the child, that the child live with the father, and spend time with the mother on alternate weekends and half of school holidays.

3. At the hearing, it was indicated that on an interim basis the father was seeking to spend unsupervised time with the child each Saturday, that the parents equally share parental responsibility and that previous orders made in the Federal Circuit Court providing for the mother to have sole parental responsibility for the child and restricting the father’s travel outside of Australia be discharged.

4. The mother opposes the father’s application and in her Response, the mother sought that the father’s application be dismissed. At hearing, it was indicated that the mother was seeking that there be a “period of adjustment” of supervised time between the father and child.

Background

1. The parents married in Country C in 2008. Soon after the marriage the mother relocated to Australia with the sponsorship of the father.

2. The only child of the relationship, B, was born in Australia in 2009.

3. The parents separated in early 2010, although the circumstances of this separation are in dispute.

4. In July 2010, with the father’s agreement, the mother and the child travelled to Country C.

5. After legal proceedings in Country C, the circumstances of which are in dispute, the mother and the child returned to Australia in January 2011.

6. In 2012, the father relocated to Country C and married his current wife, Ms Arnold. Their child, D, was born in 2013 in Country C.

7. In August 2013, the mother and child travelled to Country C. On the father’s application, an order was made on 27 August 2013 in Country C preventing the child from leaving Country C.

8. The mother says she left the child in the care of her mother in Country C, and on 3 September 2013 returned to Australia. The mother says that the child lived with her parents, and spent time with the father from Friday afternoon until Monday morning. The father says that the child lived with him and he gave “access” to the maternal grandparents to see the child on weekends. The mother communicated with the child during the week.

9. In August 2014, the father travelled to Australia. The father says the child remained living with his wife in Country C.

10. On 2 October 2014, the mother says that the maternal grandmother applied for orders in Country C for custody and recovery of the child. The mother says that she understands that orders were made to this effect.

11. The mother annexes orders made by the Court of City F, and a document which purports to be English translations of those orders. The enforcement orders of 22 October 2014 make clear that the orders of 2 October 2014 required the father’s wife “to deliver the minor child” (which she had not complied with by 22 October).

12. The child lived with the maternal grandparents from at least late 2014 until the child came to Australia in November 2015.

13. On 5 May 2015, the Country C court made final orders that the maternal grandmother have custody of the child and required the father and his wife to deliver the child to her.

14. On 23 June 2015, the mother commenced parenting proceedings in the Federal Circuit Court of Australia seeking interim orders preventing the father from leaving Australia, for the father to do all things to permit the child to return to Australia and that upon the child’s return, she live with the mother, to be heard on an ex parte and urgent basis. The mother also sought final orders that the mother have sole parental responsibility for the child and the child live with her.

15. On 30 June 2015, a judge of the Federal Circuit Court made interim orders on an ex parte basis, that the child live with the mother, that the mother have sole parental responsibility, and that the father be restrained from leaving Australia until further order.

16. On 21 July 2015, with appearances from both the mother and father, the matter was transferred from the Federal Circuit Court to this Court.

17. On 28 July 2015, a Notice of Appeal was filed by the father against the 30 June 2015. It appears that this appeal was subsequently withdrawn, although no Notice of Discontinuance has been filed.

18. In October 2015, the mother was notified that the restriction on the child leaving Country C was lifted and on 9 October 2015 the child was issued an emergency passport by the Australian Embassy in City E.

19. On 16 October 2015, the father filed an Application in a Case seeking that the orders of 30 June 2015 be discharged.

20. The child arrived in Australia with the maternal grandmother on 14 November 2015.

21. On 18 November 2015, the father filed an Amended Application in Case, the application currently before the Court.

22. The mother says that the child now lives with her, the maternal grandmother, a maternal aunt and the mother’s two younger children, aged two and half and 10 months old from a subsequent marriage. The mother says that the child has been attending primary school since her arrival in Australia.

23. The father has not spent time with the child since travelling from Country C to Australia in around August 2014.

24. The circumstances in the father’s household are unclear. He says that he now lives in Australia with his daughter Israa (aged 13) from a previous relationship, and his wife Ms Arnold and daughter D. In Ms Arnold’s affidavit she says that she is currently in Australia on a visitor’s visa.

25. It is noted that the parents and child are scheduled to attend an intake assessment with a family consultant for the preparation of a Children and Parents Issues Assessment (“CAPIA”) report on 10 May 2015.

The hearing

1. The matter came before the Court through the judicial duty list. At the hearing, it was indicated to the parties that in the circumstances a change in the child’s residence would not be considered without the benefit of a CAPIA report.

2. It was put on behalf of the father, that on this interim basis, he was seeking that:

   ·The parties have equal shared parental responsibility for the child

   ·Orders 4 and 6 to 10 made on 30 June 2015 be discharged, that is, orders providing for the mother to have sole parental responsibility and restraining the father from leaving the Commonwealth of Australia.

   ·That the father spend (unsupervised) time with the child from 10am to 6pm each Saturday, with changeover to occur at the home of the paternal grandmother.

3. At the hearing, it was communicated that the mother did not oppose the father spending time with the child, but sought a “period of adjustment” and “acclimatisation” given the time since the father has spent time with the young child. It was proposed that the father spend time with the child for three to four hours per week supervised by the mother for a period of three weeks, after which if things “went well” the father “could take the child away once a week”. It was submitted that given the conflict involved the parents’ families, there were no other suitable or willing supervisors. The mother opposes the discharge of the orders, although it was indicated that she did not oppose the discharge of the orders restraining the father’s travel in the event no orders were made in relation to spending time with the child. While it was confirmed that the child is not independently on the Watch List, neither party proposed that such an order be made.

The contested facts

1. In addition to the uncontested facts, in accordance with the decision of SS & AH[1], the Court may have some regard to the matters in dispute.  In that case, their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [1] [2010] FamCAFC 13

2. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[2], a decision of the Full Court citing Deiter & Deiter[3]).

   [2] [2013] FamCAFC 182

   [3] [2011] FamCAFC 82

3. In this matter, a significant issue is the period of time in which the father has not spent time with the child. The father asserted that he had not spent time with the child since he travelled to Australia in August 2014. At the hearing, it was suggested on behalf of the mother that this period may have possibly been since September 2013. However, no evidence was referred to in support of this contention, and it is contradicted by the mother’s own evidence that from September 2013 to mid-2014 the arrangement was for the child to spend time with the father each weekend in Country C. It is undisputed that the child has not spent time with the father since August 2014, that is, around 18 months.

4. Another issue in dispute is the circumstances in which the child came to live in Country C and the child’s living arrangements while she was in Country C. The only objective evidence is the Country C court orders annexed to the mother’s affidavit, which suggest that from around October 2014, at the latest, the child lived with the maternal grandparents. I am unable to make a positive finding in the context of this interim application as to how the child came to live in Country C or her care arrangements between September 2013 and late 2014. It is noted however, that given this background there are concerns that the child may be removed from Australia.

5. The mother says that she is concerned about the child to spending time with the father and his wife. In particular she alleges that the child was physically assaulted by the father’s wife, which the father denies. This evidence is untested and the child has not been interviewed by the family consultant. It is noted that contrary to this allegation, after an initial introductory period the mother proposes orders that the child spend unsupervised time with the father and these allegations were not raised in the course of the hearing.  In the context of this application, I do not make any positive findings with respect to these allegations.

The law

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].

   [4] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the children are met in particular ways such as:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

3. The principles underlying these objects include:

   a)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

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

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

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

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

5. In Dieter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.  In this case the interim order will operate at least for a few months prior to the family being assessed by a family consultant.

6. Goode (supra) sets a framework for the conduct of interim proceedings.  After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility.

Parental responsibility

1. In this matter, the father is seeking the previous order made on 30 June 2015 providing for the mother to have sole parental responsibility be discharged and the parents equally share parental responsibility. The mother opposes discharging the previous order.

2. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for the child. 

3. In Goode (supra), the Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC.  The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly.  On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility the major decisions for long-term care and welfare of children must be made jointly, unless the Court otherwise provides.

4. Under s 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

5. The presumption does not apply if:

   ·There are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (s  61DA(2)) or

   ·When the Court is making an interim order, the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)).

6. At this interim stage, in my view, it would not be appropriate in the circumstances to apply the presumption under s 61DA(1) of the Act that it is in the best interests of the child for the parents to have equal shared parental responsibility for her as so many critical facts relating to her best interests are unknown or in dispute (s 61DA(3)).

7. I am equally unable to find that it is the best interests of the child for the mother to have sole parental responsibility for the child. No submissions were made on behalf of the mother as to why an order providing for the mother to have sole parental responsibility would be in the best interests of the child. There is an insufficient basis to find that it is in the best interests of the child to that the father not play such a role in her life.

8. As the presumption of equal shared parental responsibility is not being applied in these circumstances, the statutory consequences do not follow and the Court must make such order as is in the best interests of the children as a result of consideration of the matters set out in s 60CC.

9. So far as other orders are concerned, the Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.

Best interests of the child: Section 60CC considerations

1. Under this section, in determining what is in a child’s best interests, the Court is to consider the matters set out in subsections (2) and (3). 

2. The primary considerations, which are contained in subsection (2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

4. Although the meaning of meaningful relationship is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[5] 

   [5] McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

5. It is undisputed that the father has not had contact with B, a young child, since at least August 2014. While the CAPIA report may provide clarification, it may be inferred that any relationship between the child and the father may be strained and the benefit to the child of this relationship with the father without support is unclear. The father offers no proposal for therapeutic intervention to assist and repair this relationship and opposed any order for supervised time. The mother was unable to propose any supervisor other than herself to facilitate the relationship between the child and the father, which, in my view, would inappropriately expose the child to the parental conflict.

6. While the father expresses some concern about the mother’s capacity to provide for the child’s needs on a full-time basis, it was not submitted on his behalf that there was a need to protect the child from harm in the mother’s care. As discussed above, the mother alleges that the child was physically assaulted by the father’s wife.  However, in the course of the hearing it was not submitted on behalf of the mother that there was a risk of harm to the child and on her proposal after an introductory period the child would spend unsupervised time with the father. In the context of this application I am unable to make an assessment of risk on the basis of this allegation.

1. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant in this case.

Any views expressed by the child and any factors underlying their views, noting their ages in respect of any weight to be given to their views

1. The child’s views are unknown.

The nature of the relationship of the child with each of their parents, and other significant persons

1. The nature of the child’s relationships with her parents and other persons is an important consideration in this matter. In particular, in the context of this application, the father’s relationship with the child is a central consideration. As discussed, the father has not spent time with the child since he left Country C in August 2014. While the CAPIA report will provide further clarification, given the child’s age and time since the father has spent time with her, it is inferred that the relationship is at the least, strained. As noted, the father makes no proposal to support the child in re-establishing the relationship with him such as therapeutic intervention.

Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, to spend time with or to communicate with the child

1. The mother was the child’s primary carer from at least the time of separation until September 2013, when the mother returned to Australia. The circumstances in which the child came to remain in Country C, and the mother returned to Australia are unclear.  The mother did not initiate proceedings in Australia until June 2015.  The mother remained in contact with the child while she was in Country C through electronic communication. Since the child has returned to Australia in November 2015, she has lived with the mother and the mother has made decisions for the child, such as enrolling her in school.

2. Prior to coming to travelling from Country C to Australia in August 2014, the father at least spent significant time with the child on weekends. As discussed, while the circumstances in which the child came to live in Country C are unclear, the father did not support lifting the restrictions on the child’s travel, or the child being issued a passport to travel to Australia. This is despite the fact that the child’s return to Australia would have given him the opportunity to spend time with the child. The father gives no evidence of his communication with the child after August 2014.

Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child

1. This factor is not particularly weighty in the application in respect to interim orders.

Likely effect of any change in the child’s circumstances, including the likely effect of separation from either parent, or other child, or other person with whom the child has lived

1. This application relates to a limited proposal for the child to spend time with the father. However, it may be inferred that the child does not currently have a relationship with the father, and a change in the child’s circumstances to spend time with him, without some support, would likely be difficult for the child.

Practical difficulty and expense of a child spending time with and communicating with a parent

1. The parents both live in metropolitan Sydney and it is not suggested that there is a significant distance between their households.

2. The mother was unable to propose any supervisor other than herself, which is inappropriate in the circumstances. The father made no proposal as to an appropriate supervisor at all.

Capacity of each parent and other persons to provide for the child’s needs, including emotional and intellectual needs

1. While the father submits he has concerns about the mother’s capacity to care for the child on a full-time basis he provides little basis for these concerns, and on his limited application the child will continue to live with the mother. The mother says that the maternal grandmother, who has been the child’s carer since at least October 2014, also currently forms part of the mother’s household and it can be inferred she provides some support for the mother and the child.

2. Very little is known about the father’s capacity to provide for the child’s needs. However, the father’s proposal to immediately spend eight hours with the young child whom he has not seen since August 2014, without any support, raises some concerns in relation to his ability to reflect on the child’s needs.

Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the child and of either parent

1. This factor is not particularly weighty in the application in respect to interim orders.

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. While unclear, the circumstances in which the child came to initially live in Country C, and later remain in Country C while both of her parents were in Australia raise concerns about the parents’ attitudes to the responsibilities of parenthood.

Family violence

1. This factor is discussed above.

Whether preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. This is unavoidable in an interim application.

Other issues: Overseas Travel

1. It is clear in the Reasons for Judgment of 30 June 2015[6] that the restrictions on the father’s travel were for the purpose of compelling the father to enable the child to return to Australia. Given the child is now in Australia, it is appropriate that these orders are now discharged.

   [6] Crawley & Arnold [2015] FCCA 2261(unreported).

2. Given the disputed circumstances in which the child came to live in Country C, the difficulty returning her to Australia, the history of the proceedings and the fact that Country C is not a party to the 1980 or 1996 Hague Conventions, it is appropriate that if the orders restraining the father are discharged, the child should be placed on the Airport Watch List.

Conclusion

1. In coming to a decision about what orders are in the children’s best interests, I must balance the various matters to which I have referred.  Having regard to both the primary considerations and the additional considerations set out in s  60CC and in light of the history of the matter, I am of the view it is not in the best interests of the child to spend time with the father in the circumstances proposed by the father. No other satisfactory arrangement to support this time with the father has been proposed.

2. For the reasons given, the previous orders in relation to sole parental responsibility and the restriction on the father’s travel are discharged.

3. Accordingly, the orders that I make are set out at the forefront of these Reasons for Judgment.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 February 2016.

Legal Associate:

Date:  17 February 2016