Attwood & Attwood
[2022] FedCFamC1F 6
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Attwood & Attwood [2022] FedCFamC1F 6
File number(s): SYC 7527 of 2020 Judgment of: ALTOBELLI J Date of judgment: 14 January 2022 Catchwords: FAMILY LAW – INTERIM PARENTING – Urgent circumstances in which the child is in Australia without a parent – Where the mother is currently in the United Kingdom and the father is in Country L – Impression that neither parent wishes to return to Australia on a long-term basis – Where child’s name is on the Family Law Watch List – Where it is common ground that the child will travel to Country L if permitted to travel – Order for child’s name to be removed from Family Law Watch List. Legislation: Family Law Act 1975 (Cth) ss 34, 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 91B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.03
Cases cited: Bennett v Bennett (2001) FLC 93-088; [2001] FamCA 462
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; [1974] HCA 17
Flanagan and Handcock (2001) FLC 93-074; [2000] FamCA 150
Gilles & Irby (2016) FLC 93-687; [2016] FamCAFC 13
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
In re Boaler [1915] 1 KB 21
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29; [1996] HCA 4
Division: Division 1 First Instance Number of paragraphs: 55 Date of hearing: 12 January 2022 and 14 January 2022 Place: Sydney (via videoconference) Counsel for the Applicant: Mr Othen Solicitor for the Applicant: Mr Katsikaris of Katsikaris Family Lawyers Counsel for the Respondent: Mr O’Dwyer SC Solicitor for the Respondent: Gordon & Barry Lawyers Pty Ltd Solicitor for the Independent Children's Lawyer: Ms Norris of Legal Aid NSW ORDERS
SYC 7527 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ATTWOOD
Applicant
AND: MR ATTWOOD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
14 JANUARY 2022
THE COURT ORDERS THAT:
1.Order 4 of the orders made on 14 December 2020 is discharged.
2.The child, X born … 2007, be permitted to travel overseas, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the name of the said child from the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Attwood & Attwood has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
This matter came before the Court on Wednesday, 12 January 2022. It then came back before me today, Friday, 14 January 2022, after Ms Attwood (“the mother”) filed a further application together with evidence in support, and asked that it be dealt with before deciding the application that was before the Court on 12 January.
Whilst this matter has a long litigation history, it came before the Court in this fashion. On 19 November 2021, Mr Attwood (“the father”) filed an Application in a Proceeding (“Watch List application”) that sought orders that I will summarise as follows;
·that he be permitted to travel to City B with the child;
·that the mother be restrained by injunction from doing anything to prevent the child from so travelling;
·that the injunction/Watch List order made by Senior Registrar Campbell (as he then was) on 14 December 2020 be discharged;
·to the extent necessary, that the Family Law Watch List order be lifted;
·that the mother pay the costs of return airfares for the father and child; and
·that the mother pay the costs of the present application.
The relevant parts of the order made by the learned Senior Registrar, as he then was, are as follows:
4.That, until further order or subject to the authenticated consent of all parties required to provide consent by Part VII of the Act, each of the mother, Ms Attwood born … 1968, and the father, Mr Attwood born … 1963, and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing, permitting or abiding the removal of the said child, X 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 said child on the Family Law 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 for the said period until the Court orders its removal, or with consent of the parties.
(Emphasis in original)
The mother filed a response to the Watch List application on 30 November 2021. She sought that the application be dismissed because it did not comply with r 5.03(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). She otherwise sought that the Watch List application be dismissed and that he pay her costs.
When the matter came before me on 12 January 2022 it became apparent, for reasons that will become obvious, that the only order that was pressed was the order lifting the Family Law Watch List order made 14 December 2020. The Court is satisfied that, because of circumstances that had changed since the time of filing, the application was no longer, in substance, an application under r 5.03, and was simply to be determined by reference to the Family Law Act 1975 (Cth) (“the Act”) and its provisions.
The day after the application came before me, the mother filed an Amended Application for Final Orders and an Application in a Proceeding on 13 January 2022. She requested that her application be dealt with before I deliver judgement on the Watch list application and response referred to above. In the circumstances I felt it appropriate to consider her new applications and the evidence in support, and to hear brief submissions before delivering judgement.
The material before the Court included:
(a)The father’s Watch List application filed 19 November 2021;
(b)The father’s affidavit filed 19 November 2021;
(c)The mother’s Response to the Watch list application filed 30 November 2021;
(d)The mother’s affidavit filed 30 November 2021;
(e)The father’s Case Outline document filed 10 January 2022;
(f)The mother’s affidavit filed 10 January 2022;
(g)The father’s affidavit filed 10 January 2022;
(h)The mother’s Case Outline document filed 11 January 2022;
(i)The mother’s Amended Application for Final Orders filed 13 January 2022;
(j)The mother’s Application in a Proceeding filed 13 January 2022;
(k)The mother’s affidavit filed 13 January 2022;
(l)The affidavit of Ms C (“Ms C”) filed 13 January 2022; and
(m)The mother’s Case Outline document filed 14 January 2022.
The only relevant effective order in place relating to the child is a consent order that was made on 7 December 2020. The Court notes that both parents were represented by senior counsel on the day. They agreed that pending further order the child lives with the father and spends time with the mother during Term 4, 2020 school holidays, and at such other times as the parties agree.
The child, X, was born in 2007 and is now 14 years old and is in Year 9 at D School in Sydney. The impression formed from the material before the Court is that she is a highly intelligent and articulate child. It is also clear that she is caught in the crossfire of her parents’ intractable conflict and that she has been involved in the proceedings, certainly by the father, and probably by the mother. This involvement includes being shown documents relating to the proceedings, including lawyers’ correspondence. The strong impression formed is that the relationship with her mother is a strained one.
The mother lives and works in City B, Country L. She is currently in the United Kingdom. There is nothing in the available material before the Court which would suggest that she will return to Australia other than, perhaps, for the purpose of spending time with her daughter.
The father is currently in Country L. The overall impression formed from all the material before the Court is that it is highly unlikely that the father will return to Australia.
The mother’s proposal is contained in a Further Amended Application that was filed 13 January 2022. The mother’s application also relates to property. The mother proposes as final orders that the child remain in Australia and attend B School, but live on campus at E School, as a full boarder. The mother proposes that Ms C have parental responsibility for the child insofar as it relates to decisions pertaining to her schooling at D School and boarding at E School, and any medical emergency.
As final orders, the mother proposes that the child spend time with each of her parents during the school holiday periods: with the mother for the end of the Terms 1 and 3 school holiday periods, and with the father for the end of the Term 2 school holiday period. Christmas holidays would be shared. The precise periods would be alternating. It is clear from the mother’s own proposal that she does not expect the father to return to Australia. In the mother’s proposal both parents would be able to remove the child from Australia for the purposes of their time.
As an alternative to this proposal the mother seeks orders that the child live with her, that the mother have sole parental responsibility for education, and there otherwise be equal shared parental responsibility in relation to other matters. The child would spend time with the father for half of the school Christmas holidays and for all of the other school holidays. It is unclear whether the mother is proposing that the child live with her in Australia, in Country L, or somewhere else. It is unlikely to be Australia, based on the strong impression formed from the material before the Court that she will not return to Australia. One possible inference to be drawn is that the child would attend boarding school in Australia, whilst the mother lives overseas. If this is correct, then on this proposal, the only time the child would spend with her mother would be half the Christmas holidays because the mother does not contend, nor can it be reasonably inferred, that she would return to Australia.
The mother proposes as interim orders that the parents have equal shared parental responsibility, that the child otherwise live with the father, and spend defined time with the mother. One difficulty with the mother’s proposal is that the defined time has already passed and thus, doing the best the Court can to interpret the mother’s proposal, the child would spend time with her as agreed between the parents.
The mother also filed on 13 January 2022 an Application in a Proceeding in which she seeks orders which discharge an order made on 7 December 2020 that the child live with the father. The mother proposes orders that the child continue to attend D School as a day student, but reside on the campus of E School as a full boarder. She seeks an order that the father be restrained from doing anything to prevent or otherwise interfere with the implementation of these orders. Attendance at the school, and the cost of boarding, would be paid for by the mother. She seeks an order that Ms C be granted leave to intervene as the Second Respondent, and to have parental responsibility as described above.
The mother relies on an affidavit from Ms C made 13 January 2022. The deponent provides her address as F Street, Suburb G which, the Court notes, is a semi-rural suburb outside of City H in New South Wales. In this affidavit, she agrees to be joined to the proceedings for the purposes of assuming responsibility for the child. She briefly describes the relationship between her family and the child’s family as being a close one.
The mother relies on a 95 page affidavit that she made on 12 January 2022 whilst in the United Kingdom, and filed on 13 January 2022. For present purposes, the mother deposes to matters including:
·She currently resides in Country L on temporary assignment due to her employment with J Company.
·On 23 December 2021 the father left Sydney to meet with his lawyer in City B Country L.
·This matter is listed for hearing before myself for five days commencing 11 July 2022.
·The child has been left in the care of a neighbour, Ms K who, according to the father, is unable to care for the child on a long-term basis.
·The mother believes that the father will not return to Australia. Indeed, she correctly deposes to the fact that on 12 January 2022, senior counsel for the father could not confirm in open court that he would return to Australia.
·The mother contends that the father has abandoned the child and that the arrangements in place for her may not be proper. She raises a number of matters about the impact on the child of the removal of an Family Law Watch List order which, effectively, prevents her from leaving Australia, and the removal of which would result in her travelling to Country L. The Court notes that it was common ground in submissions that if the Watch list Order were lifted, the child would travel to Country L.
·The mother raises concerns about whether the child would be able to start school in Country L immediately, or shortly after she returns there, if that were to be the case.
·The mother contends that even though on 13 December 2021 she had been granted a visa on compassionate grounds to come to Australia to see the child, she has been unable to do so because of the unavailability of flights due to the COVID-19 pandemic. However, she deposes that she has booked a flight to Sydney departing City M on 16 January 2022, arriving 17 January 2022, and a return flight back to Europe departing Sydney 29 January 2022. The Court observes that there is no evidence from the mother about what efforts she made to travel to Australia after 13 December 2021 apart from the N Airlines flight to which she deposes.
·The mother deposes to the child’s unwillingness to speak with her, ostensibly on the basis that she, the mother, would not consent to her travel to Europe. The Court notes that the communications between mother and child seem to confirm this.
·The mother deposes to the father’s unwillingness to speak with her. However, she has received messages from which she has formed the impression that the father does not intend to return to Australia. The Court believes that the mother’s impression is soundly based.
·The mother believes that the father has inappropriately involved the child in the present proceedings. As a result, she contends that the child has become totally enmeshed in the proceedings and invested in the parental dispute. The Court believes that there is substance to the mother’s belief.
·The father has repeatedly refused to deliver the child to the single joint expert appointed in these proceedings.
·The mother is aware of the father’s proposal to enrol the child in the O School. The mother does not believe it is a suitable option for the child.
·The mother seems to contemplate that if the child refuses to continue her education at D School, after a final hearing that she would come to live with the mother and her partner in City B, and attend an international school there.
The other affidavit on which the mother seemingly relies is her affidavit filed 10 January 2022. Relevantly, that affidavit states:
·The mother does not believe that the father has any intention of returning to Australia, but rather to permanently relocate his and the child’s residence to Europe.
·She believes the father will not comply with orders made by the Court.
·She comments about the cost of the proceedings.
·She is so concerned about the content and volume of messages from the father that she has found it difficult to concentrate on her work. Moreover, she fears for her safety if she is in the same places the father so much so that she has decided to remain in the United Kingdom, to reduce her distress.
·She believes that the father has alienated the child from her, to the point that the child does not wish to spend any time with her, and that the child is enmeshed in the proceedings.
·On 16 December 2021 the child emailed her mother. Amongst other things she told her mother:
Your messages are just mental torture now. The only thing that's important to me now is my holidays and Christmas.
…
Dad has shown me your proposals for me to go to Europe…
…
One of the things that dad is dealing with in Country L, as you know, is that at the end of February this year, you broke [the] law by failing to pay full child support.
…
How can someone do this to their only child and stop them from coming over to Europe to see them? Dad leaves on the 23rd and we've made arrangements for me if I can't fly with him like I desperately want to.
·On 6 January 2022 the child emailed her mother in the following terms:
I didn’t get a message from you on New year’s eve. I sometimes actually question your sanity. The part in your message about seeing friends before school restarts is just absolutely ridiculous. What? Do you think I’m staying with Ms K indefinitely? You’ve made your views very clear when you’ve said that I will have to stay here until July when the family court matters finish. I do not plan on staying here that long. And no, I will not speak to you. Something I have told you several times now. I said to you at the time that if you stopped me from going over to Europe and held me here for Christmas against my will, that I wouldn’t talk to you. But, of course you refuse to listen to me.
(As per the original)
In the father’s affidavit filed 10 January 2022 he deposes to the following relevant matters:
·He sets out many historical matters which, the Court notes, merely confirms its impression of the intractable nature of the parental conflict, and of the parents’ propensity to prioritise their own needs above that of their daughter.
·In November and December 2021 the father sought, through his lawyers, to obtain the mother’s consent to the child travelling to City B over the Christmas period from after 21 December 2021 but returning before the commencement of the school term. The mother declined. With the benefit of hindsight, the Court queries whether the father in fact intended to return the child to Australia.
·On 19 November 2021 he filed the Watch List application that came before the Court, namely an application for permission to travel, which included an order for the removal of the child from the Family Law Watch List. This application had not been filed in accordance with the Rules, and thus was not listed until 12 January 2022.
·Apparently, the Independent Children’s Lawyer became involved in negotiations which, the father believed, resulted in the child’s willingness to engage in therapy with her mother, but also suggested an agreement had been reached about travel. In any event the mother did not consent to the child travelling and, apparently, the therapy has not taken place.
·The father travelled to Country L on 23 December 2021. At the time of his affidavit he was staying in a hotel in Country L. He had previously paid for airfares for both the child and he to travel to City B and his belief was that she could still so travel using the ticket he had purchased. The situation is that the child remains resident in Sydney, and is being cared for by a neighbour, Ms K, who indicated she could not care for the child long-term. At the time of his affidavit of the father believed the mother to be either in the United Kingdom or in City B. From the Court’s perspective, the father’s actions in leaving the child in the care of a neighbour almost beggars belief. His decision and action in this regard left the child in Australia without a parent and in the care of a neighbour. He prioritised his own needs over that of his daughter.
·The father deposes to be aware of some communication between the child and her mother.
·The father deposes to the commencement of legal proceedings in City B both in the past, and either current or imminent. The overall impression formed is that the father believes he will achieve a greater degree of success in City B than in Australia, certainly in relation to financial matters. Clearly there is a forum-type dispute between the parents about where their litigation should be conducted.
·The father is financially dependent on the mother who, he contends, has reduced the amount of the support paid.
·At paragraph 28 he deposes to his belief that divorce proceedings in Country L could be finalised within three to four months “should Ms Attwood cooperate in the process”. He goes on to state that he does not intend to return to Sydney until these proceedings are finalised. He observes that there are no long-term arrangements in place for the child’s care in Sydney. The Court observes that based on its reading of the material, and the impressions formed during the interim hearing, it is highly unlikely that the mother would cooperate in the process contemplated by the father.
·The father contends that the child wishes to be with him. The communication in evidence involving the child seems to confirm this.
·The father has made enquiries with the O School and believes that there are vacancies there.
·He deposes that the lease of his apartment at Suburb P in Sydney, where he has lived with the child and himself, expires in March 2021, though this is probably a typographical error and he means March 2022. He has made enquiries about the availability of suitable alternative accommodation in both City Q and City B.
·In the final paragraph of his affidavit (paragraph 32) he states that he seeks orders for the child to be permitted to travel to City B and to reside with him “for as long as [he is] present in City B”.
·On 9 January 2022 the child emailed her mother in the following terms:
Instead of wanting to spend time with me over the Christmas holidays when you knew that I wanted to come to Europe, you stopped me from coming to Europe. Instead, came to the United Kingdom with your new partner and spent the Christmas holidays with him. You only told me at Christmas that you were living with a new partner. The UK is only one hour away from City B on the plane. You could've also spent time with me in Country L. We have not seen each other for over a year. You keep talking about how bad our relationship is but instead of choosing to spend time with me, you choose to spend the time with your new partner. I started speaking to you in September about wanting to come over to Europe so you've had plenty of warning.
·The father deposes to a text message exchange with the mother where, relevantly, on or about July 23, 2020 she states: “No I won’t do anything to keep X in Australia. As you said I won’t even be living in Aus so I can’t do that.”
·In a subsequent text message exchange, the date of which is unclear, the mother said: “I have no intention of doing anything in Australia except establish my visitation rights to X etc.”
APPLICABLE LAW
The Court does not have the power to place a child on the Family Law Watch List, rather, it has the power to make an injunction (e.g. under s 68B), a writ or an order (e.g. under s 34 and s 65D) restraining the child from leaving Australia. The Court requests that the Australian Federal Police (“AFP”) place the child on the Family Law Watch List. Therefore, the Court made an order in this case on 14 December 2020 restraining the child’s removal from Australia and also requesting that the AFP place the child on the Family Law Watch List. The Full Court describes the distinction between making an order that restrains the removal of the child from Australia and the request the Court makes to the AFP in the matter of Gilles & Irby (2016) FLC 93-687 at [56]:
While there is no power to order the AFP to place a parent or child’s name on the Family Law Watchlist, the long-standing co-operative administrative arrangements that see “requests” to that effect being acted upon (and, as a consequence, included in orders) might see them being regarded as separate to an injunction directed to a party.
In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(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; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or 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.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)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;
(b) 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);
(c)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;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(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;
(e)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;
(f)the capacity of:
(i)each of the child's parents; and
(ii)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;
(g)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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)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
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)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:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)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;
(m)any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
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72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
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82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
For all practical purposes, the father’s application must be regarded as one in which he asks the Court to discharge Order 4 made by Senior Registrar Campbell (as he then was) on 14 December 2020. This was the injunction restraining the parents from removing the child from the Commonwealth of Australia. Section 68B(1) of the Act states that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. Section 68B(2) also states that the making of the order may occur in any case in which it appears to the Court to be just or convenient to do so.
The Full Court in Bennett v Bennett (2001) FLC 93-088 determined that the power in s 68B was not subject to the express legislative requirement that the Court must regard the best interests of the child as the paramount consideration; and even if s 68B were subject to the “best interests” principle, it is doubtful that this would displace the established common law principles contained in the authorities such as In re Boaler [1915] 1 KB 21; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 and Coco v The Queen (1994) 179 CLR 427. However, the Full Court in Flanagan and Handcock (2001) FLC 93-074 considered this and referred to CDJ v VAJ (No 1) (1998) 197 CLR 172 which decided that orders that are not a parenting order do not directly invoke the application of the paramountcy principle. Nevertheless the Court agreed with the Full Court that the consideration of what is in the best interests of the child are “powerful matters to be weighed up against a competing principle such as finality”. The Full Court therefore held that in respect of the issue of an injunction under s 68B, it is incorrect to state that the “paramountcy principle” applies. However, the best interests principle needs to be given careful consideration, especially where the orders sought to be made intimately concern the welfare of the children.
Thus, whilst the best interests of the child is not stated explicitly as the governing principle when making an injunction under s 68B, for all practical purposes the concept provides a useful framework within which to explore whether, in this case, the lifting of the injunction, is appropriate for the welfare of the child, and is otherwise just or convenient.
DISCUSSION
A number of preliminary observations are apposite.
It is self-evident that a decision needs to be made quickly, and therefore on the basis of incomplete, hastily prepared, conflicting, and untested evidence as well as little time for judicial reflection. Neither parent is present in Australia and neither parent has signalled a willingness to either stay, or return to Australia on a medium to long-term basis. The child is being cared for by a neighbour in circumstances the details of which are simply unknown. We do not know whether the care is full-time or part-time. All that we know is that it cannot be long-term. The school term commences in two weeks’ time and this child does not know with any certainty whether she will return to school at D School where she is at the moment, or whether she will attend school in Country L.
The second preliminary observation is that the Court believes it is unwise to engage in speculation about the impact of any order that it makes today on the proceedings here in Australia or in Country L. A decision needs to be made today about what is best for this child in circumstances largely created by both parents, to different degrees. The child is a child who has permanent residence in Australia. The child was ordinarily resident in Australia at the time these proceedings commenced. Any interim order that the Court makes for the child to travel to her father in Country L does not necessarily deprive this Court of jurisdiction to hear the case to finality. The Court must not be overly distracted by what impact its decision might have on proceedings in either of the jurisdictions mentioned.
The third preliminary observation is that the child has experienced her father to be her primary carer since at least February 2019 and, according to the father, since her birth. That is not to exclude the important role that her mother played, but the impression created from such available evidence indicates that it was the mother who played the role as breadwinner in this family and was at all relevant times engaged in well-paid but demanding employment.
As a result of the submissions made, as well as the material before the Court, it seems that there is common ground about a number of other matters. The mother has never spent two weeks’ overnight time with the daughter since separation. The family travelled extensively throughout the world as a result of the mother’s employment. They resided in Australia between 2008 and 2012, and then the father and the child resided in Australia from 2019. Such relationship as exists between Ms C’s family and the family constituted by the parents and the child was founded in the period 2008–2012.
The circumstances that existed at the time the injunction was made in 2020 have changed. The father no longer lives in Australia. Both parents now appear to have a much stronger connection to Country L than to Australia. It is no longer just or convenient, and it is no longer appropriate, to restrain the child from travelling to the country where both of her parents seemingly live, at least for the time being.
I must take into account as a primary consideration the benefit to the child of having a meaningful relationship with both parents. It is highly questionable whether the child’s relationship with her mother is meaningful at present, but in a prospective sense there can be no doubt that it would be beneficial to her. Doing the best the Court can, it does seem as if the child’s relationship with her father could be described as a meaningful relationship. It is not possible for the child to have a meaningful relationship with either parent in Australia, because neither parent is present nor has signalled an intention to return, or stay here, for more than a short period of time. The Court believes on balance that the father will not return, but will remain in Country L. The Court believes that if the mother does in fact return to Australia, it will be for a limited period only, and then she will return to Country L, or possibly the United Kingdom, within a matter of weeks. It is more likely, however, that the child will have a meaningful relationship with both her parents (in a prospective sense) if she lives in Country L with her father, at least for the time being.
The Court must consider as the primary consideration the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I note that the Independent Children’s Lawyer submitted that one option for the Court was to make an order under s 91B of the Act inviting the relevant child welfare authority to intervene in the proceedings. The Court accepts that in circumstances where the child is not in the care of either parent, s 91B is indeed activated. The Court believes that this child is at risk of harm. It is hard to be precise about what this risk of harm is, because so little is known about the child circumstances in the care of a neighbour. There could be physical risk – the Court does not know. There could be for psychological risk arising under the circumstances of the care – again the Court does not know. The risk could be abuse or neglect – the Court does not know. Sometimes risk to children is self-evident, and this is one of those circumstances. For all practical purposes, the father has abandoned her, though from his perspective it might only be on a temporary basis, and for tactical and/or strategic benefit to him. The mother’s response to this is plainly inadequate. At most, she is prepared to come back to Australia for the next two weeks, until her daughter starts at boarding school. The unfortunate fact for this child is that neither of her parents wishes to be in Australia but, incongruously, the mother somehow wants her to remain here, even though she herself cannot care for the child. The child is certainly at risk of psychological harm in circumstances where she has clearly been inappropriately exposed, and involved in, the intractable parental conflict that exists between her mother and father. The only way that this risk can be managed is for the child to return to the care of one parent. That is the father’s proposal. Whilst the father’s parenting presents as leaving much to be desired, at the very least he proposes that the child live with him albeit in Country L, pending final order. The child would have the presence of a parent in her life on the father’s proposal, but not on the mother’s proposal.
I must take into account the views of the child. A preliminary issues assessment was conducted on 27 January 2021. The child presented as a mature, engaged, polite and articulate young girl. The child reported that she was not very close to her mother and feels nervous about her mother’s alcohol use as she becomes verbally abusive. By contrast, she reported a close relationship with her father. The child expressed a clear view about not wanting to spend overnight time with her mother, and if she does spend time with her mother it be in Sydney but without the involvement of talking about Court or issues that her mother may have with her father. She mentioned that she would like to progress to spending time with her mother outside of Australia, including in City B.
Based on the totality of the material before the Court, the child presents as highly intelligent and articulate, indeed assertive in her communication, such as was before the Court. Even the mother in her evidence refers to her daughter as being strong and intelligent. Doing the best the Court can, the strong impression formed is that she wants to live with her father, given that her relationship with her mother is so strained. She clearly does not want to live with her mother. It is not entirely clear whether she wants to live with her father in Country L, although she clearly wanted to spend holidays there. The Court believes that a reasonable inference to draw is that she wants to live with her father, even if it is in Country L. Nothing is known about her views in relation to boarding school at E School. The evidence suggests that the child did attend there for one year, left at her request, and has expressed views indicative of not wishing to return to E School. One would reasonably expect that an intelligent and articulate emerging young woman such as the child in this case would have a view. None of the correspondence between the mother and the child suggests that the child’s views have been sought in relation to the mother’s proposal.
Counsel for the mother submitted that the Court would be very careful in placing weight on the views of the child. This is the case with the mother argues that the father has alienated the child against her. There is clear evidence that the child has been involved in these proceedings, by her father. Nonetheless, the child’s communication with her mother is in evidence and strongly suggests that this child holds strong views, and forcefully rejects her mother’s assertion that her views are being influenced by the father. The Independent Children’s Lawyer submits that the Court must have some regard to the child’s views. The Court agrees. She impresses as being quite mature. Indeed, the Court would be concerned about the impact on the child of not having her views listened to and given appropriate weight. Indeed, the Court accepts the submission made on behalf of the father that to make an order that does not reflect the child’s views will simply exacerbate the already poor state of her relationship with the mother.
I must take into account the nature of the child’s relationship with her parents, and other relevant persons. Her relationship with the mother is clearly strained, and if not entirely broken down, it is on a downward trajectory. She has lived with the father hitherto. The fact that she wants to spend time with him is consistent with the existence of a good relationship. For all practical purposes, nothing is known about the child’s relationship with the neighbour who is presently caring for her, and very little is known about the relationship with the person who the mother proposes be, for practical purposes, the guardian of the child. One cannot help but form the unfortunate impression that even the mother knows that her relationship with her daughter is so strained that it becomes necessary for her to suggest a substitute to herself. With respect to the mother, her interim proposal that the child live with her in the two week interval between the determination of the present application and the child returning to school (and boarding on the mother’s proposal) is unrealistic given the lack of any history of overnight time between them, and the evidence of the child’s assertive communications with the mother.
I must take into account the extent to which each of the child’s parents have taken or failed to take opportunities to participate in decision-making, to spend time with and communicate with the child. Whilst I do not consider this to be ultimately determinative in the present application, the impression created is that the intractable conflict between the parents has probably led to difficulties with this consideration, and this is reflected in the underlying themes of the mother’s affidavits that she has been excluded from her daughter’s life, as a result of the father’s active and passive behaviour. There may be substance to this. Another hypothesis, of course, is that the difficulty in the mother’s relationship with the child is attributable to multiple causes to different degrees which might, for example, include conduct of the father which has alienated the child from the mother, or the mother being realistically estranged from her daughter as a result of her own actions and omissions, or possibly even developmental considerations attributable to the child’s individuation.
I must take into account the likely effect of change in the child’s circumstances. At least in recent history the father has been her primary carer, especially in circumstances where the relationship with the mother is strained, and the mother is living overseas because of her work commitments. His decision to leave the child parentless in Australia is an extraordinary one, which brought about enormous change for the child. His proposal, however, restores the status quo that existed before he left. The child would return to his care, albeit in Country L, instead of Australia, at least for the time being. The mother’s proposal, instead of seeking to address the dramatic change that happened in her daughter’s life, seeks to build on it by introducing boarding school as a substitute form of care, and for all practical purposes the exclusion of the father for significant periods of the year, which is inherent in her proposal for time which, to the extent it is known, is limited to school holidays only. Whilst a move to Country L is certainly a change for this child, given that both her parents seem, for now, to call Country L home, in terms of relationships the option of return to Country L at least creates the opportunity for a relationship with both parents, and is thus potentially a change for the better. On the mother’s proposal, the child will go from living with her father, to seeing her father just a few times each year. The Independent Children’s Lawyer correctly submitted that the child has already experienced change, and will on either proposal experience further change.
The Court acknowledges that it is possible that any decision it makes today may expose the child to further disruption should she be ordered to return to Australia as a result of a subsequent application, the final hearing, or other proceedings. Of course, that risk needs to be balanced against the consideration that points towards allowing the child to travel.
I am required to consider issues of 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. The mother’s proposal will involve substantial practical difficulty and expense which would be associated with either parent spending time with the child. By contrast, the father’s proposal, based on the available evidence before the Court, in fact reduces the issues of practical difficulty and expense that are raised by this consideration.
I am required to consider the capacity of the parents to provide for the needs of this child, including emotional and intellectual needs. Issues abound in this case about the capacity of the parents to provide for this child’s emotional needs, even on the limited information available at an interim hearing. The stance that each has adopted in this litigation creates the impression of lack of capacity to understand what their daughter needs in a psychological and emotional sense. For example, clearly this child needs the freedom to be able to enjoy a relationship with both her mother and father, without the interruption of the other. She needs to be distanced and shielded from their conflict, whether such conflict is about her, or other matters. She needs her parents to focus on her needs, rather than their own needs. She needs her parents to respectfully consider her views, even if they do not necessarily always accede to them, and to listen to her. In respect of this nonexclusive list, the parents have failed and this reflects an incapacity to meet their daughter’s emotional and psychological needs. The Court has no doubt, however, that any need that can be addressed by the allocation of money will always be met. For example, she will always go to an excellent school.
I am required to consider the maturity, sex, lifestyle and background of the child and either of her parents. This family has travelled extensively during the life of the child. The child herself seems well-travelled. The child seems well-versed in moving between countries and cultures.
I am required to consider attitudes to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents. To some extent, this consideration overlaps with the issue of parental capacity to provide the child’s needs. The father’s abandonment of the child in Australia, and the mother’s proposal for her to remain here at boarding school, reflects an immature, self-focused attitude towards the child, and an irresponsible attitude towards their responsibilities as parents. It is hard to understand the rationale in the mother’s proposal that the child remains in Australia, but the mother returns to Country L to work. It is hard to understand the father’s decision to travel to Country L. To the extent that his case was based on financial considerations, it is unconvincing. Both parents insufficiently articulated realistic and child-focused proposals for the child to spend time with the other parent should the orders they propose be made. Both parents should understand that the Court is equally critical of them. There are so many aspects of this case that create the unfortunate impression that the best interests for this child is somewhat illusory, and that the best that this Court can hope for, at least in the short term, is that the Court can create by making orders a situation for the child where there is least risk for her.
I am required to consider family violence and family violence orders. The material before the Court hints at the relevance of this consideration, but it does not present as a determining issue in the present context.
The Court must aspire to make an order that is the least likely to lead to the institution of further proceedings in relation to the child. The litigation history of this matter suggests that any order made is unlikely to avoid further litigation. In any event, these are interim orders, not final orders, and this matter remains listed for hearing.
CONCLUSION
Having regard to the material before the Court, and to the matters set out above, this Court does not believe that it is in the best interests of this child to remain in Australia in a context where neither parent is prepared to return here for other than what is in reality a fleeting visit. This child’s best opportunity to continue her relationship with her parents is in Country L. For the time being it is the safest place for her. Allowing her to travel to Country L to be with her father will be consistent with her views. It will provide the most meaningful opportunity for a relationship with both parents. There is already an order in place for the child to live with her father, and to spend time with her mother as agreed. The Court has reservations about the ability of the parents to reach agreement about most matters relating to this child. The Court had contemplated making orders for the child to spend time with her mother in Country L, but none of the proposals before the Court addressed this. The proceedings are still on foot in this Court, and thus it is not out of the question for the parents to seek orders in relation to this issue, if they are unable to agree. The evidence refers to the need for therapy in order to facilitate the child’s relationship with her mother. That can take place as effectively in Country L, as it can in Australia.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated: 14 January 2022
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