Barton and Barton

[2017] FamCA 24

FAMILY COURT OF AUSTRALIA

BARTON & BARTON [2017] FamCA 24

FAMILY LAW – CHILDREN – BEST INTERESTS – Application by the father that the child travel unaccompanied to the United Kingdom to spend time him – Where existing interim orders provide for the child’s travel but where that travel has not recently occurred – Where the father lives in the United Kingdom – Where final orders sought by the father include a proposal that the child live with him in the United Kingdom – Where the child is of an age where her views are relevant – Where the child has expressed a view against such travel in the past – Where a level of caution should be exercised in circumstances where the child’s current views have not been ascertained by the Independent Children’s Lawyer – No orders made as to the child’s travel – Order made for an updating single expert report.

Family Law Act 1975 (Cth)
APPLICANT:	Mr Barton

RESPONDENT: Ms Barton

INDEPENDENT CHILDREN’S LAWYER: Ms Tin

FILE NUMBER: SYC 3379 of 2007

DATE DELIVERED: 11 January 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 11 January 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Craddock Murray Neumann

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Abrams Turner Whelan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. No changes are made to the orders made on 24 August 2015.

2. Each of the parties be restrained from causing the child to be referred to, except in the case of any emergency medical treatment and consultations with a medical practitioner with whom there is already a relationship with the child, any medical practitioner or therapist of any kind without notifying the other party at least 14 days in advance of the reason for the referral and providing the name and contact details for the referring practitioner.

3. The Independent Children’s Lawyer settle a letter to commission an updated report from the single expert Dr A and request that Dr A give thought to whether it is practical to observe the father and the child for the purposes of that report whether that is in person or by electronic means.

4. The parents shall cooperate in authorising communication between Dr A and any treating medical practitioner or therapist.

5. Leave is granted to the Independent Children’s Lawyer to restore the proceedings to the list for the purpose of the allocation of trial dates once the timetable for Dr A’s updated report is known.

6. Within 28 days from today’s date the mother provide to the solicitor for the father all relevant information in relation to further therapy prescribed for the child arising out of a diagnosis by her treating paediatrician.

7. The father provide a response as to whether he will agree to those referrals within a further 21 days and in the event there is a dispute between the parents, leave is granted to the parties to restore the proceedings to the list by arrangement with the Independent Children’s Lawyer and the associate to Justice Loughnan.

8. The costs of the updated report be met equally by the parents.

9. Within seven days the mother provide to the solicitor for the father the name and contact details for any therapist or medical practitioner treating the child other than the child’s general practitioner and a copy of any written report from either the therapist, the speech pathologist or the paediatrician as soon as practicable.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC3379 of 2007

Mr Barton

Applicant

And

Ms Barton

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, B, in 2004, so 12 years of age.  Orders were made by Stevenson J on 29 July 2008 providing for the child to spend some time – I think, over six weeks a year – with the father, and otherwise live with the mother. 

2. In, late 2012, the father applied for parenting orders.  He amended his application in March 2013.  He was with the public service in the United Kingdom and had organised a temporary placement.  During the course of those proceedings he had proposals and possibilities of him being able to stay in Australia on a permanent basis.  Those possibilities have been frustrated.

3. The father has remarried.  He and his wife have a daughter. 

4. He thought it was possible he would be back in Australia in October last year.  In anticipation of that return, I made orders in August of 2015 for time between the child and the father, both in Australia and in the UK.  In relation to time with the child to be exercised in the UK, those orders took the arrangements up until July of last year.

5. The father now believes that he will not be able to live in Australia.  The final order he now seeks will involve the child living with him in the United Kingdom and spending specified time with the mother. 

6. The August 2015 orders were made at about the time when the final hearing was to take place.  Given the likelihood of a change in the father’s residence, what was to be a final hearing turned into an interim hearing.  As a result I made interim orders and reasons were published at the time.  Things have not gone well since that time.  The parties disagreed about the import of the August 2015 orders.  They negotiated some changes to the orders.  I note that the matter was not brought back before me under the slip rule, which is the orthodox way of dealing with a problem where there is said to be an error in reduction to writing of orders.  In any event arrangements were made for the child to travel, and as the mother said, over seven months she had three trips to the UK to spend time with the father.

7. The last trip was April last year.  The child went to the UK.  Both before and after each trip concerns were expressed for her welfare.  The child has not seen the father since April 2016.  The orders provided for travel in the July 2016 school holidays.  The parties attempted to negotiate a swap between July and September.  The July date was vacated with a level of agreement but the swap to September never came about. 

8. The parties were in negotiations in October and November 2016, about time over Christmas.  Mother had a proposal which was, essentially, time with the father, in the first half of the December school holidays in Australia.  The father’s expectation was that the time would be in the UK.  The parties’ proposals went backwards and forwards. 

9. Finally, on 23 December the father’s Initiating Application was amended, seeking orders, as I have said, for the child to live in the UK with him.  He also sought an interim order for the child to travel to the UK for time later in the Christmas holidays.  He initially sought that she depart on 9 January.  That was changed to tomorrow to accommodate today’s hearing.

   The issue today is whether I am to order that the child be placed on a plane tomorrow to travel unaccompanied to the UK via Dubai.  The mother opposes that.  She says that the child is on a camp and it will be practically difficult for her to leave tomorrow but her main concerns arise out of the child’s presentation before and after the 2016 trips.  

10. The mother sets out in extensive detail the anguished conversation she has had with the child about travel to the UK.  Most importantly, there was a note written by the child which sets out her feelings, which include a reference to suicide and other self-harm.  As Ms Tin has pointed out on behalf of the Independent Children’s Lawyer (“ICL”), to some extent the father accepted the concerns raised by the mother when he compromised the arrangements for July. 

11. The mother says those concerns are still real and that the child was quite affected before and after travel.  The ICL supports the mother’s position on this issue.  Because of the timing of the interim proceedings, the ICL has not been able to speak to the child about the travel.  As has been pointed out, the child is of an age where, her wishes about her living arrangements will be increasingly influential.  They are a relevant consideration under s 60CC of the Family Law Act 1975 (Cth).  There is evidence about her views, and they are all against the travel. 

12. This is now a situation where, without the ICL speaking to the child and the child saying that she is no longer strongly opposed to travel to the UK, then it is very difficult for the Court to be in a position to make the orders the father wants.  

13. The father’s view is a bit more jaundiced about it.  He says, over the time since the orders were made, the communication between him and the child has almost completely broken down and that the mother has not honoured the spirit of the orders that were made.  He finds that the child has been taken to a speech pathologist.  He says that he was not asked before and he was not told after, what that referral was about. 

14. He was not asked about or told before or after the child’s referral to a paediatrician.  He may have only found out by reading the documents filed for these interlocutory proceedings.  He feels as though his part of the equal shared parental responsibility has not been fostered by the mother.  He is also concerned about whether the reports from the child are uncontaminated, unassisted or indeed prompted by the mother’s views.  I noted in the August 2015 judgment that there is a dreadful level of antipathy between the parents, about which, no doubt, the child is only too aware. 

15. The decision is not a hard one.  The child is a young girl.  It is not an insignificant thing, as I indicated in the judgment, that she would make the journey to the United Kingdom.  Unaccompanied travel is not pleasant.  The trip itself is not pleasant.  Indeed, it is stressful.  Here there is evidence of the child expressing very serious concerns and the father respected those concerns in relation to travel planned for July 2016.  In those circumstances and without the advantage of the child recently meeting with the ICL, so as to provide an independent indication of her immediate concerns, a level of caution is required.  There are a raft of other issues that are agitating the parties.  I am not going to interfere with the orders that I made last year.  Absent agreement between the parents, the orders effectively now provide only for time between the father and the child in Australia.  

16. The child is not a baby and therefore there is no risk that the relationship between the child and father might be lost.  Dr A said some nice things about that relationship in her report.  The important thing is to be conservative and careful and try and get to the bottom of what is happening.  It is said that a psychiatrist has identified the child as having Attention Deficit Disorder (“ADD”).  It could be that condition that lead to the rather florid presentation of the child in April, rather than anything to do with overseas travel or anything else. 

17. That diagnosis is another concern.  The mother has done some research into ADD and she has provided a prescription about what might be useful and so on and, of course, she would do that as a loving parent.  However, the mother will not be the relevant expert for those things for the court proceedings. 

18. The father seeks that the proceedings be listed for trial and that approach is agreed.  It is agreed that Dr A, being the single expert, should update her report.  The only question about all of that is to time the updated report to the new hearing, so that the report does not become stale.

19. The variable in that is, although Dr A could - would have appointments available in April, we do not know what she is going to do about observations with the father.  The father lives in the UK, so his solicitor will need to get some instructions from the father about what he wants to do about that.  He will decide whether it is feasible for him to come to Australia to see the child and/or to be part of an observation.  If he cannot do that, then I imagine Dr A will be able to manage something short of an in person observation and that might be done in April.  I do not have trial dates available to give the parties, but the hearing could be before another judge.  I will leave the ICL to bring the matter back at her own initiative or on the prompting of one of the parties when she knows what the arrangements are going to be with Dr A.  If we know three months out that we will have a report, say, in May, then we can make trial directions.  In this case I would prefer not to leave it until the issue of the report before we look for trial dates.  That would be tempting fate.

20. That deals with a whole lot of issues to do with the practical consequences of the travel and the thorny issue of unaccompanied travel, which I read in the Qantas documents includes travel where the accompanying persons travel in a different class in the aeroplane.

21. There was an issue about s 106A orders.  That and the rest of the orders sought, really, relate to the practicality of that trip.  None of that is needed because there will be no travel on this occasion.  I will make no changes to the orders I made on 24 August 2015.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 11 January 2017.

Associate: 

Date:  23 January 2017