Ashforth and Ashforth (No 5)

[2010] FamCA 990

FAMILY COURT OF AUSTRALIA

ASHFORTH & ASHFORTH (NO. 5) [2010] FamCA 990

FAMILY LAW – CHILDREN – Child related proceedings – interim parenting – father lives in United Kingdom – mother resides in Australia with the child – father seeks to spend increased time with the child whilst he is in Australia – mother to provide other information, including by way of reports to the father, in relation to the child’s care, welfare and development

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

APPLICANT: Mr Ashforth

RESPONDENT: Ms Ashforth

FILE NUMBER: MLC 9801 of 2009

DATE DELIVERED: 4 November 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 26 October 2010

REPRESENTATION

APPLICANT: In person by telephone link to the United Kingdom

RESPONDENT: In person

Orders

It is ordered that:

1. The matter is adjourned for further consideration before Justice Fowler at

   
   

   9.30 am on Tuesday, 8 February 2011.

2. Pursuant to section 62G of the Family Law Act 1975 a Family Consultant nominated by the Manager, Child Dispute Services, Sydney Registry prepare a report on matters relating to the care, welfare and development of the child, E born … April 2009.

3. The Family Consultant must ascertain the views of the child in relation to those matters referred to below and include those views in the report, unless to do so would be inappropriate because of the child’s age or maturity or some other special circumstance, noting that a child cannot be required to express his/her views on any matter.

4. The parties must attend all appointments fixed by the Family Consultant and ensure that the child attends all appointments as notified by the Family Consultant

   AND THE COURT NOTED that an appointment has been tentatively booked at 9.30 am on Tuesday, 21 December 2010 which will require the attendance of the father, mother and child for most of the day.

5. The Family Consultant has leave to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to at least one party or the Independent Children’s Lawyer in this matter.

6. In preparing the report the Family Consultant is directed to consider:

   (a)The benefit to the child of having a meaningful relationship with both parents.

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

   (c)Other considerations, including:

   (i)Any views expressed by the child and the weight that should be given to those views

   (ii)The nature of the child’s relationship with each parent and other relevant persons

   (iii)The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent

   (iv)The likely effects of any changes in the child’s circumstances

   (v)Any practical difficulties and expense of proposed parenting arrangements

   (vi)The capacity of parents or relevant others to provide for the needs of the child

   (vii)The maturity, sex, lifestyle, background (including lifestyle, culture and traditions) of the parents

   (viii)The child’s right to enjoy his/her ATSI culture, and the likely impact of orders on that right

   (ix)The attitude to the child, and to the responsibilities of parenthood demonstrated by each parent

   (x)Any family violence involving the child or a member of the child’s family

   (xi)The extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent, including participating in long term decisions about the child, spending time and communicating with the child

   (xii)The extent to which each of the parents has facilitated, or failed to facilitate, the other parent participating in long term decisions about the child, spending time and communicating with the child

   (xiii)The extent to which each parent has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

   (d)Any other matters that relate to the care, welfare and development of the child.

7. It is requested that the Director of Child Dispute Services give expedition to the preparation of the Family Report and make arrangements for the relevant interviews to take place when the father is in Sydney and so far as possible at such times so as not to overly interfere with the father’s arrangements to spend time with his daughter.

8. If by 4.00 pm on 12 November 2010 the funds held in the investment in Cyprus have not become available and Order (3) of the Orders made on 4 August 2010 by The Honourable Justice Ainslie-Wallace have not been complied with then before the next occasion the matter is listed in this Court the father is to provide to the mother and file with the Court an affidavit setting out evidence of his attempts to procure the funds said to be held in the investment in Cyprus and setting out any conditions imposed by those who hold those funds, or conditions imposed on their withdrawal.

BY CONSENT IT IS ORDERED PENDING FURTHER ORDER THAT:

1. The mother authorise G Early Learning Centre, attended by the child, to communicate directly with the father in relation to her attendance and progress, and to provide directly to him, upon his request, all information and material that is normally provided to parents, in accordance with G Centre policy.  This includes, but is not limited to:

   (a)       Observations

   (b)       Developmental Summaries and Checklists

   (c)       Photos and Newsletters

   (d)Use of Skype for regular video messages with the child, facilitated by G Centre staff.

2. The mother provide to the father regular written reports, by e-mail, not less than two-monthly in relation to the child’s care, welfare and development, with information including but not limited to:

   (a)       The child reaching significant developmental milestones

   (b)       The child’s health

   (c)       The child’s involvement in activities

   (d)       The child’s attendance at childcare.

3. The mother provide to the father, by email, not less than monthly, photographs and videos of the child.

4. Each of the father and the mother advise the other forthwith of any significant injury or illness arising with respect to the child, whilst she is in their respective care, providing the name and contact details of any medical practitioner upon whom the child has attended.

5. Each of the father and the mother at all times keep the other informed as to the following:

   (a)       mobile telephone numbers

   (b)       email address

   (c)       contact details while holidaying with the child.

6. The father at all times keep the mother informed as to the following:

   (a)       his residential address

   (b)       his landline telephone number.

7. The mother provide to her parents the following details, to be released by them to the father in the event of an emergency in relation to the child:

   (a)       her residential address

   (b)       her landline telephone number.

8. The father is restrained from removing the child from the Sydney Metropolitan Area.

9. The father is restrained from removing or attempting to remove the child from Australia.

10. During any period of time that the child is with the father the child becomes distressed then the father will return the child to the mother or her pre-school or the maternal grandmother.

11. The child spend time with the father in Australia in December 2010 as follows:

    (a)on Saturday, 25 December for a period of four hours between 8.30 am and 12.30 pm

    (b)on Sunday, 26 December for a period of four hours between 8.30 am and 12.30 pm.

12. Until further order the child reside with the mother.

IT IS ORDERED PENDING FURTHER ORDER THAT:

1. The mother and father have equal shared parental responsibility for the child.

2. The mother authorise and direct any medical or other health professional attended upon by the child to communicate directly with the father, about the child’s attendance upon that practitioner, her medical history and treatment.  The Court notes the undertaking of the father to only seek information in relation to the child.

3. The child spend time with the father in Australia in December 2010 as follows:

   (a)by consent on Monday, 20 December (in the afternoon) for a period of one hour at G Early Learning Centre (“G Centre”) by way of graduated reintroduction between 2.30 pm and 3.30 pm.

   (b)on Tuesday, 21 December for a period of one and a half hours (am or pm) with a pick up and/or drop off to G Centre.  Such hours are to be nominated by the mother in writing to the father on or before Monday, 13 December 2010 and in default of such nomination the period of time shall be between 8.00 am and 11.00 am.

   (c)on Wednesday, 22 December for a period of three hours at times to be nominated by the mother with a drop off and/or pick up to G Centre.  Such hours are to be nominated by the mother in writing to the father on or before Monday, 13 December 2010 and in default of such nomination the period of time shall be between 8.00 am and 1.00 pm.

   (d)on Thursday and Friday, 23 and 24 December for a period of five hours at times nominated by the mother in writing to the father on or before Monday, 13 December 2010 and in default of such nomination the period of time shall be between 8.00 am and 4.00 pm.

   (e)on Monday, Tuesday and Wednesday, 27, 28 and 29 December for a period of six hours between 8.00 am and 2.00 pm on each such day unless otherwise agreed between the parties.

   (f)on Thursday and Friday, 30 and 31 December for a period of eight hours between 8.00 am and 4.00 pm on each such day unless otherwise agreed between the parties.

4. The father keep the mother informed as to his accommodation and contact details during his time spent with the child in Australia.

5. For the purposes of the child spending time with the father pursuant to Orders 23(a), (b) and (c) herein, the father collect the child from G Centre at the commencement of that time and return the child to G Centre at the conclusion of that time.

6. Other than as provided in Order 25 above, the child be delivered to the father’s place of residence at the commencement of the child’s time with him and collected from the father’s place of residence by the mother, or her nominee, at the conclusion of that time.

7. The cost of transport of the child for the purpose of spending time with one of the parties and being returned to the place of residence is to be shared as follows:

   (a)the cost of the transport referred to in Orders 19(a) and 23(a), (b), (c) and (d) herein be at the cost of the father

   (b)the cost of transport referred to Orders 19(b) and 23 (e) and (f) herein be at the cost of the mother.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLC 9801  of 2009

MR ASHFORTH

Applicant

And

MS ASHFORTH

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are interlocutory proceedings commenced by an Application in a Case filed by the father on 21 September 2010.

2. The father, a resident in the United Kingdom, seeks orders in relation to the parenting of the parties’ child, who resides in Australia with her mother.

3. This matter has been before the Court on two prior occasions and on each occasion orders have been made providing for the father to spend time with his daughter during the period he is in Australia.

4. The mother filed a Response to the Application in a Case on 22 October 2010, and which was amended on 26 October 2010, seeking that the father’s application be dismissed and orders similar to those previously made in the case continue.

5. The orders most recently made were made by her Honour Justice Ainslie-Wallace and provided for the father to spend time with his daughter in Australia for varying periods of time over a period graduating from one hour to five hours as the child and the father became more acquainted and more used to each other.

6. The father now seeks to spend time with the child for increased periods of time during a period between 20 December 2010 and 31 December 2010.

7. The proceedings were ones in which both the applicant and respondent were self-represented and the applicant attended the proceedings by telephone from the United Kingdom.

8. At the commencement of the proceedings I went through the orders sought by the applicant with the respondent and a number of orders were agreed.

9. The mother agreed to the terms of Order 5:

   5.That the wife authorise [G Centre], attended by [the child], to communicate directly with the husband in relation to her attendance and progress, and to provide directly to him, upon his request, all information and material that is normally provided to parents, in accordance with [G Centre] policy.  This includes, but is not limited to:

   5.1Observations.

   5.2Developmental Summaries and Checklists.

   5.3Photos and Newsletters.

   5.4Use of Skype for regular video messages with [the child], facilitated by [G Centre] staff.

10. The mother agreed to the terms of Order 6, subject to the amendment that the report be two-monthly and that amendment was accepted by the father:

    6.That the wife provide to the husband regular written reports, by
    e-mail, not less than two-monthly in relation to [the child’s] care, welfare and development, with information including but not limited to:

    6.1[The child] reaching significant developmental milestones;

    6.2[The child’s] health;

    6.3[The child’s] involvement in activities; and

    6.4[The child’s] attendance at childcare.

11. The mother agreed to the terms of Order 7:

    7.That the wife provide to the husband by email, not less than monthly, photographs and videos of [the child].

12. Order 8 sought by the father is in the following terms:

    8.That the wife authorise and direct any medical or other health professional attended upon by [the child] to communicate directly with the husband, about [the child’s] attendance upon that practitioner, her medical history and treatment.

13. The mother opposed the making of the order referred to above on the basis that the father might procure information concerning her consultation with a medical practitioner as a result of the process.  In response, the father said that he would undertake only to seek information in relation to the child and indeed, he points out that is all that she is obliged to do – that is the scope of the authority that she is asked to give to any medical practitioner.  Noting the undertaking of the father therefore, I propose to make an order that the information otherwise requested be provided to the father.  I do so because it is important that this father, in developing a relationship with his child, be kept fully informed of the matters referred to in the order so that he can approach time spent with his daughter fully cognisant of her needs and anything affecting her health.

14. The parties agree to the terms of Order 9:

    9.That each of the husband and the wife advise the other forthwith of any significant injury or illness arising with respect to [the child], whilst she is in their respective care, providing the name and contact details of any medical practitioner upon whom [the child] has attended.

15. The father proposed Order 10:

    10.That each of the husband and the wife at all times keep the other informed as to the following:

    10.1Their residential address;

    10.2Land Line and Mobile telephone numbers;

    10.3Email address; and

    10.4Contact details while holidaying with [the child].

    It was eventually agreed that this order could be made, save for the order that the mother to keep the father informed of her residential address and landline telephone number.

16. It has been however agreed that the mother will provide that information to her parents which is to be released by them to the father in the event of an emergency in relation to the child.

17. Order 11 was sought in the following terms:

    11.That until further order [the child] otherwise spend time with the husband in Australia, at least twice each year, in a like manner, upon the husband providing at least 6 weeks prior notice, by email or otherwise, to the wife.

    Certainly it would be my hope that the parties come to an agreement about the timing and manner of further contact between the child and the father.  My impression of the dispute thus far is that the parties have been perhaps subsumed by their conflict and have been unable to remain child-focussed.  Much of the argument before me demonstrated a high level of personal antipathy.  If this child is not to fall into the risk of harm created by that sort of antipathy and her future assured then it must stop and the parties must concentrate on the child and in particular her need to have a meaningful relationship with each of her parents and her right to have them contribute in full measure to her obtaining her full potential.  I do not at this time propose to make any further order and I note however that the Court will take importantly into account on the final hearing the demonstrated capacity or incapacity of a parent to remove the child from conflict and promote a meaningful relationship with the other parent.

18. It was agreed that until further order the child reside with the mother.

19. The father sought an order for joint parental responsibility which is the statutory position in any event and the mother sought that the statutory position be changed and that she be granted an order for sole parental responsibility.

20. Given that this is an interlocutory proceeding on the papers, the evidence which is in the form of affidavits by each of the parties and the father’s mother, together with annexures to them, did not convince me that so significant a step should be made on an interlocutory application in this matter.  It is appropriate that an order be considered at the final hearing after all the evidence has been heard, weighed and tested.  I decline to make such an order.  Therefore the statutory position will remain until further order.

21. The father sought contact with his daughter as set out in paragraphs 2.1 to 2.8 of his application:

    2.That [the child] spend time with the husband in Australia in December 2010 as follows:

    2.1On Monday 20 December (in the afternoon), for a period of at least 1 hour at [G] Early Learning Centre (“[G Centre]”), by way of graduated reintroduction.  Such time is to be nominated by the wife, in accordance with the [G Centre] policy preference that afternoon visits should be between the hours of 2.30 pm and 4.00 pm.  Such time is to be nominated by the wife in writing to the husband on or before Monday 13 December 2010, and in default of any such nomination, the period of time should be between 2.30 pm and 3.30 pm.

    2.2On Tuesday 21 December, for a period of at least 3 hours (am or pm) with a pick up and/or drop off to [G Centre].  Such hours are to be nominated by the wife in writing to the husband on or before Monday 13 December 2010, and in default of any such nomination, the period of time should be between 8.00 am and 11.00 am.

    2.3On Wednesday 22 December, for a period of at least 5 hours, at times to be nominated by the wife, with a drop off and/or pick up to [G Centre].  Such hours are to be nominated by the wife in writing to the husband on or before Monday 13 December 2010, and in default of any such nomination, the period of time should be between 8.00 am and 1.00 pm.

    2.4On Thursday 23 and Friday 24 December, for a period of at least 8 hours, at times nominated by the wife in writing to the husband on or before Monday 13 December 2010.  Again, in default of any such nomination by the wife, such period of time should be between 8.00 am and 4.00 pm.

    2.5On Saturday 25 December, for a period of at least 4 hours, at times nominated by the wife in writing to the husband on or before Monday 13 December 2010.  In default of any such nomination from the wife, the period of time should be between 10.00 am and 2.00 pm.

    2.6On Sunday 26 December, for a period of at least 4 hours, at times nominated by the wife in writing to the husband on or before Monday 13 December 2010, and in default of such nomination, such period of time should be between 10.00 am and 2.00 pm.

    2.7On Monday 27, Tuesday 28 and Wednesday 29 December for a period of at least 8 hours, at times nominated by the wife in writing to the husband on or before Monday
    13 December 2010, and in default of any such nomination, such period of time should be between 8.00 am and 4.00 pm on each such day.

    2.8From the morning of Thursday 30 December for an overnight stay, returning to the wife’s care on the afternoon of Friday 31 December at times nominated by the wife, and in default of such nomination, such period of time should be between 8.00 am on Thursday 30 December and 2.00 pm on Friday 31 December.”

1. Order 2.1 was agreed to, subject to the time at 4.00 pm being reduced to 3.30 pm and I make an order accordingly.

2. The father pressed for time with the child for three hours on Tuesday, 21 December 2010 in accordance with order 2.2.  The mother sought to limit the contact to a period of one hour.  Her assertion in relation to this matter and otherwise in relation to the matters of the child spending time with the father were borne of a consideration of the Child Responsive Program Memorandum in this matter and the advice of Ms B, Family Consultant.

3. In that report, Ms B emphasised a number of matters, as set out hereunder:

   ·… Children of [E’s] age and up to the age of three years generally are in the most formative period of a developmental process during which they form close attachments to people who most regularly meet their needs.  They will often protest upon separations from such caregivers and/or become anxious upon separations from them especially in unfamiliar situation.

   ·Young children have not formed the cognitive capacities that enable them to hold on to images and memories other than for fairly short periods of time, especially prior to the development of language capacity.

   ·If children are not spending regular time with a parent and, for example, there are months between visits, that parent will not be a familiar figure to them and they will not have developed a secure attachment to them.  It is generally recommended that, in these situations, children have assistance with being reintroduced to their parent when they meet each time and with gradually becoming familiar with them again in a manner similar to the arrangements put in place by His Honour Justice Cronin.

   ·In situations where a young child is only seeing a parent every few months or less it may take some years before they are able to maintain a sense of familiarity and connection with that parent during periods of no contact.  There are many things that both parents can do to build and maintain positive relationships in these situations and Mr and Mrs [Ashforth] have been sent booklets written for parents about how to assist children in these circumstances.

4. The position is that following the making of that report the father did spend time with his daughter over an increasing period of time and all the accounts of that time was that it was rewarding for the child and that she did not other than have a warmth and a responsiveness to the father which was entirely appropriate.

5. It was suggested that this perception by the father was “subjective”.  Nevertheless, the evidence in my view was not sufficient to gainsay it and indeed the father’s evidence was supported by that of his mother.

6. The child has grown older since Ms B’s report and it seems to me that there is a reasonable basis for considering some extension of the times spent by the child with the father.  I do however think that this should be graduated although not quite so static a plan as such suggested by the mother, given that the child has had the experience that she has had and that the father has provided videos and CDs for the child to keep memory of him alive in her mind.  The mother has said that she has passed those on to the child although asserting that sometimes the child’s interest wanders from them.

7. All in all I have determined that the time spent in order 2.2 will be a period of one and a half hours;  under order 2.3, 3 hours;  and under order 2.4, 5 hours.  I believe that this provides an appropriate gradation to the point of Christmas 2010.

8. The orders of provisions 2.5 are agreed between the parties, subject to the time being from 8.30 am to 12.30 pm and as is order 2.6 subject to the same times being set.

9. Order 2.7 was not agreed and I have ordered that the child spend time with the father for a period of six hours on each of those days with a default period to commence at 8.00 am and continue until 2.00 pm on each day.

10. I indicated to the parties that I did not consider it appropriate, having regard to the advice of Ms B, that at this time the child spend overnight time with the father.  However, I do believe the six hours with her father could increase to eight hours on each of Thursday, 30 December and Friday, 31 December and I propose to order accordingly.

11. There has been a dispute between the mother and the father concerning the methodology for transferring the child from the father to the mother and the mother to the father.

12. The mother complained that the father had not complied with an order of the court that she be paid certain monies.  She complained that he had only paid the amount required to be paid pursuant to the provisions of the Child Support (Assessment) Act1989 (Cth) but inferentially confirmed that he had paid that.

13. The father said he had been involved in extensive litigation and was unable to afford representation at this time and this position was echoed by the mother.  The father said that given the cost of his accommodation and his transport to Australia he was unable to spend that amount of money which was necessary to hire a car.

14. The cost of transport of a child for the purpose of spending time with one of the parties and being returned to the place of residence are a cost of the child and each of the mother and the father is in paid employment.  On an interlocutory basis it is my intention that the cost be shared and that for the transport referred to from Orders 2.1 to 2.5 transport be at the cost of the father and as to the time spent under Orders 2.6 to 2.8 the transport be at the cost of the mother and the child be delivered to the father’s place of residence at the commencement of the period and picked up by the mother or her nominee from the place of residence at the conclusion of the period of the child spending time with the father.

15. The father proposed Order 4 and I make that Order:

    4.That for the purposes of paragraph 3 above, the husband keep the wife informed as to his accommodation and contact details, during his time spent with [the child] in Australia.

16. In her Response, the mother sought a number of orders, including an order that she have sole parental responsibility and which issue I have already determined in these reasons.  The mother further sought that the child live with her and this was consented to by the parties.

17. The mother sought that the child spend different periods of time with the father than those proposed by him, which I have dealt with above.

18. The mother sought an order that time spent with the father take place in the presence of her mother but on the hearing the order was not pressed and the application for it is dismissed.

19. It was further proposed by the mother that before the father spends time with the child he participate in the Child Responsive Programme.  I decline to make that order but with the concurrence of the parties I will make an order for the preparation of a Family Report.

20. I have requested the Director of Child Dispute Services to arrange for the preparation of a Family Report.  I ask that she give expedition to the preparation of that Report, having regard to the father’s place of residence and the short period of time he is in Australia.  I ask that so far as possible the time for his interviews be at such times so as not to inhibit his time with his daughter pursuant to these Orders.

21. The mother sought an order that Dr Q or some other independent psychiatric expert be appointed to prepare a psychiatric report.  I decline to make such an order.  In my view, there is insufficient evidence at this stage to warrant the making of such an order but the application may be renewed at a later time but not before the preparation and release of the Family Report.

22. The mother sought Orders 8, 9 and 10 as set out hereunder and which are agreed to by the father and I make those Orders.

    8.That the father be restrained from removing [the child] from the Sydney Metropolitan Area.

    9.That the father be restrained from removing or attempting to remove [the child] from Australia.

    10.That during any period that of time (sic) that [the child] is with the father if [the child] becomes distressed then the father will return [the child] to the mother or her pre-school or [the maternal grandmother].

23. The mother sought Order 11 in the following terms:

    11.That the father forthwith pay to the mother the $40,000 ordered to be payed (sic) during the (sic) July 2010 and that interest be included with the outstanding payment.

    This order was sought in an Amended Application filed on the day of the hearing.  I decline to make an order that an order be complied with since the order in its terms requires compliance.  I note that the father informed the Court that he did concede that he had not complied with the order but said it was due to an inability to do so and not a lack of willingness.

24. The father informed the Court that the funds held to meet the order were held in an investment in Cyprus, an investment in relation to which he said the mother was the prime mover or an active participant.  He said that he had been making attempts to procure the release of those funds but there had been some difficulties which neither he nor the mother had anticipated.

25. His most recent communication was that he would hear from the company in relation to the release of the funds in the first week of November 2010.  I will make an order that the father provide to the mother and to the Court an affidavit before the next occasion on which this matter is listed, evidence of his attempts to procure the funds and any conditions imposed by those who hold them on their withdrawal.  Such material need not be provided if by the end of the second week in November the funds are available and the order has been complied with.

26. I again indicated to the parties that of what I have seen of this case there is a great deal of heat and very little light.  Whatever they do in relation to their financial affairs is a matter for them but what they do in relation to their child impacts on her.  Hostility and conflict between parents, on the evidence produced before this Court, time and again, can be permanently damaging to a child and I urge upon them both to consign their animosity to the dustbins of history and concentrate on procuring accord for the sake of the welfare of this child.

27. In so doing they will give to their daughter a gift that only they can give and a gift that is beyond price.  I wish them well in that process.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 4 November 2010.

Associate: 

Date:  4 November 2010