Barton and Barton

FAMILY COURT OF AUSTRALIA

BARTON & BARTON

[2015] FamCA 845

FAMILY LAW – CHILDREN – Interim – Best interests – Where there is one child who is 11 years of age –Where there is longstanding, ongoing conflict between the parents – Where previous parenting orders had been made –Where the child primarily lives with the mother – Where the child has a meaningful relationship with each of the parents – Where the father lives overseas from time to time – Where orders needed to be made in relation to the father’s time with the child when he is out of the jurisdiction – Where it was not necessary or appropriate to make an order about parental responsibility – Where the court was of the opinion that it was inappropriate to make orders for a 12 year old child to travel unaccompanied to the United Kingdom – Orders made for the child to spend time with the father overseas, while he is visiting Sydney, and pending his permanent residence in Sydney.

Family Law Act 1975 (Cth) s 60CC

APPLICANT:

Mr Barton

RESPONDENT:

Ms Barton

INDEPENDENT CHILDREN’S LAWYER:

Ms Power

FILE NUMBER:

SYC

3379

2007

DATE DELIVERED:

24 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

21 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wong

SOLICITOR FOR THE APPLICANT:

Craddock Murray Neumann

COUNSEL FOR THE RESPONDENT:

Ms Kennedy

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Power

Orders

All previous parenting orders in respect of B born … 2004 (“the child”) are discharged.
Each party is at liberty to enrol the child in a high school of his or her choice and shall notify the other party within 21 days of the lodging of such enrolment, providing a copy of the enrolment application.
Each party shall provide to any school at which the child may in the future be enrolled, at the time of enrolment, a copy of these or any subsequent current orders.
Until further order of the Court, the child shall live with the mother at all times when she is not living with or spending time with the father in accordance with these orders or the written agreement of the parties.
The child shall live with the father in the United Kingdom from 5.30 pm on 19 September 2015 until 6 October 2015 (“the travel”) and for the purposes of this order:
(a)The child is permitted to travel to the United Kingdom to live with the father, departing Sydney on 19 September 2015 and returning to Sydney on 6 October 2015;
(b)The child shall be collected from the mother by, travel to and from Sydney to the United Kingdom with, and be returned to the mother’s care by Mr E and Ms E (“the father’s nominees”);
(c)The mother shall deliver the child into the care of the father’s nominees at 5.30 pm on 18 September 2015 at McDonald’s Restaurant, Suburb F;
(d)The mother shall collect the child from the father’s nominees at the Sydney International Airport Arrivals on 6 October 2015 at a time to be nominated by the father to the mother via email.
The Court noted that the terms of order 5 (a), (b) and (c) are made by consent.
Pending the return of the father to live in Australia, the child shall live with him for the following periods:
(a)From 28 December 2015 until 25 January 2016;
(b)From 7 April 2016 until 24 April 2016; and
(c)From 2 July 2016 until 24 July 2016.
The father shall give the mother at least 28 days’ notice of the arrangements he proposes in relation to each of the periods listed in order 7 and unless the parties agree to the contrary, in the event that any of those periods involves overseas travel, the mother shall cause the child to be delivered to Sydney International Airport Departures to the father or his nominee(s) three hours prior to the child’s time of departure so as to enable the child to travel at the commencement of these periods of residence and she shall collect the child from Sydney International Airport Arrivals at the conclusion of these periods of residence from the father or his nominee(s).
In the event that the father notifies the mother that one or more of those periods will not involve overseas travel the handover arrangements will be the same as the handover arrangements pursuant to order 11(iii) and (iv) of these orders.
Until further order the father shall make all necessary arrangements for the child’s travel outside Australia and unless the parties otherwise agree, he shall:
(a)Ensure that she is accompanied by him or by another adult known to the child; and
(b)Send a copy of the return air tickets/electronic ticketing, the itinerary for the child’s travel, details of the addresses at which the child shall be residing to the mother at least 14 days prior to the scheduled date for commencement of these periods of residence.
Until further order, in addition to the periods provided for in order 7 and unless the parties otherwise agree, the child shall live with the father while he is visiting Sydney as follows:
(a)For up to six weeks in each calendar year as provided for in the following orders:
(i)      On the day of the father’s arrival in Sydney from a time three hours after the father’s arrival if his arrival is on a non-school day or in the case of a school day from the end of school until three hours prior to the father’s time for the departure;
(ii)    Upon the father giving the mother not less than 14 days’ written notice of his intention to visit Sydney and providing to the mother in writing the dates and times of his arrival in Sydney and his departure from Sydney, his address and mobile telephone number whilst in Sydney;
(iii)   The father shall collect the child at the commencement of the child’s period of residence with him from the mother’s care at McDonald’s Suburb F in the event the day of his arrival is on a weekend or Public Holiday, and from the child’s school in the event the child is at school on that day;
(iv)   The mother shall collect the child at the conclusion of the child’s period of residence with the father from her school, if the child is at school on that day, or from Sydney International Airport Departures check in area;
(v)     The mother shall provide sufficient clothing for the child for each period of residence with the father and that the father shall return such clothing to the mother at the conclusion of the periods of residence;
(vi)   That the mother shall communicate with the child by calling the child’s mobile telephone during her periods of residence with the father every third evening between 7.00 pm and 7.30 pm;
(vii) The mother shall be and is hereby restrained from sending text messages to the child’s mobile telephone or causing or requesting any other person to send text messages to the child’s mobile phone during the child’s period of residence with the father;
(viii) That while the child is residing with the father, the father shall make the child’s mobile telephone available to her to facilitate the child’s communication with the mother as provided for in sub-paragraph (vi) herein and at other times when the child asks to telephone the mother.
(ix)   At all other reasonable times as agreed between the parties.
The father shall cause the mother to be notified in writing of the father’s intention to return to reside in Sydney forthwith upon him deciding to return.
Upon the father’s return to reside in Sydney the child shall thereafter, pending further order, live with the father as follows:
(a)During school terms from the conclusion of school on each alternate Friday first commencing within 72 hours of the father returning to reside in Sydney, until the commencement of school on the following Thursday;
(b)During the Christmas school holidays:
i.       The father spend time with the child from 5.30 pm on the day that school finishes in December; and
ii.      Continue for 22 days thereafter, finishing at 3.00 pm on the 22nd day.
iii.    In each odd numbered year, the father return the child to the mother for the purpose spending time with the mother at Christmas, from 12.00 pm on 24 December until 12.00 pm 26 December, at which point Order (b)(ii) resumes.
(c)From the start of 2017, for the second half of each of the other school holiday periods with each school holiday period commencing at the conclusion of school for each term and concluding at the commencement of school for the following school term, including pupil-free days;
(d)That changeover in school holiday periods shall take place on the day which is mid-way in each holiday period and at 12 noon on that day;
(e)In the event that the child is not living with the father on her birthday, from the conclusion of school to 6.00 pm where the child’s birthday falls on a school day or from 9.00 am to 1.30 pm where her birthday falls on a non-school day;
(f)In the event that the child is not spending time with the father on Father’s Day, from conclusion of school on Friday of that weekend to commencement of school on the Monday.
Notwithstanding any order herein, unless the parties otherwise agree and until further order:
(a)The child shall live with the mother on Mother’s Day each year from conclusion of school on the Friday until the commencement of school on the Monday;
(b)In the event the child is not living with the mother on her birthday, from the conclusion of school to 6.00 pm where the child’s birthday falls on a school day or from 9.00 am to 1.30 pm where her birthday falls on a non-school day.
Until further order when the child is spending time with the father:
(a)The father will cause the child to contact the mother as soon as practicable upon the child’s arrival after international travel from Australia;
(b)The mother is at liberty to communicate with the child by telephone between 7.00 pm and 7.30 pm on each third day;
(c)If the child wishes to communicate with the mother at any other times when she is living with the father, the father shall not place any restrictions or barriers to the child’s communication with the mother.
Until further order when the child is spending time with the mother:
(a)The father is at liberty to communicate with the child by telephone and/or electronic communication between 7.00 pm and 7.30 pm by the father initiating communication with the child on her mobile phone or by text message on each third day; and
(b)If the child wishes to communicate with the father at any other times when she is living with the mother, the mother shall not place any restrictions or barriers to the child’s communication with the father.
For the purposes of orders 15 and 16, each parent shall:
(a)Ensure that the child is made available between 7.00 pm and 7.30 pm to speak with the other party on the appointed day;
(b)Refrain from placing the call on speaker phone; and
(c)Otherwise allow the child to speak with the other party in private should the child so request.
Each party shall do all things necessary to ensure that the child’s mobile telephone is:
(a)Operating;
(b)Fully charged;
(c)Not engaged; and
(d)Available to the child when required for the purposes identified in these orders.
Each party do all things necessary to encourage and facilitate the child’s communication with and spending time with the other parent as provided for in these orders.
The father is at liberty to forthwith collect from the Registry:
(a)The child’s United Kingdom passport, to be retained by him for the purposes of obtaining a visa enabling the child to travel to and from the UK on that passport and thereafter to be held by him pending further order; and
(b)The child’s Australian passport for the purposes of the travel referred to in order 5 and thereafter:
i. The father shall cause that passport to be returned to the mother on the return of the child at the conclusion of the September/October 2015 travel; and
ii. In relation to further overseas travel with the father, unless the parties otherwise agree in writing, pending further order the mother is to cause the child’s Australian passport to be delivered to the father or his nominee not later than seven days prior to each occasion of travel and the father is to cause the passport to be returned to the mother forthwith upon the delivery of the child to the mother at the conclusion of each occasions of travel.
Until further order, the parties shall do all things necessary to cause the child to be referred to and known by the name of “B Barton”.
Until further order each party will, while the child is in their care:
(a)Notify the other parent as soon as possible of any serious illness or injury suffered by the child while in their respective care as soon as practicable;
(b)Notify the other parent and keep the other parent notified of a telephone number where he/she may be contacted in the event of an emergency;
(c)If requested by the other parent, notify the other parent of the name, address and telephone number of the child’s treating doctor and sign any authority the other parent may provide to authorise that doctor in writing to release to the other parent particulars of the child’s health or treatment at any time requested by him or her.
(d)That in order to facilitate this order, the mother shall provide to the father within seven days of the making of this order the child’s Medicare number, and shall keep the father provided with any changes to or alterations to the child’s Medicare number.
Until further order, in relation to school and extra curricular activities, events and notices:
(a)Each of the parties do all things necessary to authorise the Principal of the child’s school/s to provide to each party duplicate copies of school reports, school photographs, notices of parent/teacher meetings, school assemblies, sport and swimming carnivals and any other school activities to which parents are invited to attend and any other correspondence or notification otherwise relevant to the child; and
(b)In the event that it is not practicable to cause the child’s school to forward copies, reports, photographs or notices directly to the father as soon as practicable the mother shall forward a copy of those documents to the father.
Until further order of the Court the mother is restrained from writing to, emailing, telephoning, communicating with or contacting in any manner (“communicate”) or causing any other person to so communicate with any of the father’s employers including but not limited to the United Kingdom Ministry of Defence or Australian Department of Defence including personnel of any rank; the British High Commission in Canberra, lessor/s, his/their servants or agents in relation to the father.
Until further order the mother is restrained from referring to the father as “…” at any time to the child or in the presence of the child AND FURTHER that the mother shall ensure that the child does not refer to the father as “…” or “…” at any time and the mother shall at all times actively encourage the child to refer to the father as “Dad”, “Daddy” or “father”.
Until further order the mother shall use her best endeavours to ensure that no third party shall refer to the father as “…” or “…” to the child and within the child’s hearing or presence.
By consent, without admissions, the mother is restrained until further order from referring to the father’s wife Ms G Barton as “…” at any time to the child or in the presence of the child AND FURTHER that the mother shall ensure that the child does not refer to Ms G Barton as “…” at any time and the mother shall at all times actively encourage the child to refer to Ms G Barton as “Ms G”.
By consent, without admissions, until further order the mother shall use her best endeavours to ensure that no third party shall refer to Ms G Barton as “…” to the child and within the child’s hearing or presence.
Until further order each party is restrained from denigrating the other party in the presence or within hearing of the child and shall use his/her best endeavours to ensure that no third party shall denigrate the other party within the child’s hearing or presence.
Until further order each party is restrained from discussing with the child any allegation raised in these proceedings other than as authorised by the Court.
Until further order each party shall be restrained from presenting the child to any psychologists, counsellor, therapist or psychiatrist other than with the written consent of the other party.
Until further order, except in the case of a medical emergency requiring surgery or hospitalisation or urgent medical treatment, each party shall be restrained from presenting the child to any medical or health care practitioner or hospital for any invasive procedure/examination other than with the written consent of the other and each party acknowledges that this order does not apply to common childhood ailments.
Each party cause the other party to be notified by way of email at least seven days before any change to:
(a)The parent’s residential address;
(b)Landline telephone number if available;
(c)Mobile number;
(d)The child’s mobile number; and
(e)Email addresses at which they may be contacted for the purpose of these Orders.
Except in case of emergency or if the child is overseas:
(a)The father shall only take the child to her regular GP Dr H; and
(b)Shall notify the mother prior to any such visit.
The father notify the mother by email, following the visit to the child’s treating General Practitioner of the outcome of any medical consultation, within 24 hours.
Until further order the parties may only cause the child to travel to countries where the Australian government website lists the country with a status of “Exercise normal safety precautions”.
Until further order, after international travel the parties shall return the child to Sydney, not less than 48 hours prior to handover if practicable.
In the event that the father is in Australia and is ordered or directed, by virtue of his position in the military forces of the United Kingdom or in private employment to engage in some function relating to his military service or career, which will require him to remain absent from his normal place of residence for a period in excess of 24 hours (“when the father is deployed”) the father’s time with the child under these orders is suspended during the deployment.
Until further order in the event that the father is deployed by the Armed Services of the United Kingdom or Australia he shall notify the mother of that deployment immediately.
Until further order, the father take all practical steps to ensure that he does not:
(a)Shower with the child;
(b)Sleep in the same bed with the child;
(c)Appear naked in the child’s presence; or
(d)Be present with the child when the child is naked.
Leave is granted to the parties to restore the proceedings on giving seven days’ notice to the Court and the other party, or if there is an agreement on an issue, leave is granted to the parties to seek the making of orders in chambers.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3379 of 2007

Mr Barton

Applicant

And

Ms Barton

Respondent

REASONS FOR JUDGMENT

These are proceedings for interim parenting orders. The matter was before me on 21 August 2015. I indicated to the parties that I would give reasons for judgment today. The parties were excused on delivery of judgment.

BACKGROUND

The background has a father and mother, who, I understand, are 43 and 47 years of age respectively. They met in the United Kingdom in January 1998 and started cohabitation on 1 October 2000. They were married in Sydney in 2003 and then returned to live together in the United Kingdom. The parties separated on 21 December 2006 when they were in the United Kingdom. They were divorced on 18 July 2008. They have one child, B. She was born in 2004 and so she is 11 years of age.
The mother started proceedings in the Federal Magistrates Court on 10 May 2007. The mother was then living in Australia and the father remained in the UK. Ultimately, there were final defended orders made by Stephenson J of this Court on 29 July 2008. In the broad, those orders provided for the child to spend time with her father before she started school, for six weeks each year in Australia and those periods were staged and were to gradually lead to block periods. Once she started school the orders provided for the father to spend time with her for four weeks a year during school holidays. The orders then provided from the age of 12, the child could have unaccompanied travel to the United Kingdom to spend time with her father, for not less than four weeks a year.
The father made an application for some orders in 2012 and, ultimately, that resulted in interim orders made by the Senior Registrar on 20 November 2013. The father had told the court that he had made arrangements to be in Sydney for two years from 21 July 2013 under an arrangement between the UK Armed Forces and the Royal Australian Navy. His evidence was that he had been told that that arrangement might be extended until July 2016.
Turning back to the orders of November 2013, those orders provided that all previous orders be suspended; that the child live with the mother and spend time with the father during school term on alternate weekends commencing 29 November 2013 from 5.30 pm to the commencement of school the following Monday and each alternate Wednesday overnight to the commencement of school, Thursday.
As to school holidays, the Senior Registrar ordered that there be time with the father from 11 to 15 December 2013; from 9 to 12 January 2014; from 15 January until 21 January 2014; and then 24 January to 27 January; some time on the child’s birthday and Father’s Day. Those times were to be interrupted on Mother’s Day and to provide for some time with the mother on her birthday. Changeovers were at a McDonald’s restaurant. Parties were not to be present, with the handover arranged by other people. Communication orders were made for 7.00 to 7.30 each night with the mother to call when the child was with the father and he was to facilitate occasions when the child wanted to call the mother. A limit on text messages was fixed at four a day and, then, reciprocal orders were made in relation to the father’s time.
The orders included the usual sort of arrangements about notice, details of healthcare professionals, notification of illnesses and so on. There were orders about the duplication of school information to the father to record the father’s details with her school. A restraint was imposed on the use of any surname other than Barton for the child. The mother was restrained from communicating with the father’s employers or potential employers. The mother was restrained from allowing the father to be referred to as “Dick” in the mother’s household. The usual non-denigration orders were made. Usual sort of medical orders. Provision was made for school holidays and there was some provision in relation to international travel. A provision was made for the father’s time if he was deployed at any time.
There was a subsequent change to those orders to facilitate travel to New Zealand. Those orders were made on 5 August and that was by way of a variation of the existing orders and an order was made then that the child’s passport be retained with the registry manager to be released on receipt of the consent of both parties.
The proceedings were allocated to my docket and on 3 March I made orders for the matter to be listed for five days commencing on a date to be settled and, ultimately, the matter was fixed for hearing over five days commencing 21 August 2015.
On 11 August 2015 the matter was re-listed on the application of the mother and, ultimately, after hearing submissions from the parties the hearing was vacated. That was necessary because the father had learned that he would be leaving Australia at the end of this month and was not sure when and under what circumstances he would be able to return. That caused obvious problems for conducting a final hearing. I suppose the main concern being understanding the father’s proposals. The hearing was vacated, but the parties were experiencing problems with the interim arrangements and some regime needed to be established in relation to the father’s time with the child when he was out of the jurisdiction and so the matter was listed on 21 August 2015 for the purposes of identifying appropriate interim orders.
The evidence of the father is that in February or March of this year he was told that the foreshadowed extension of his posting in Australia to July 2016 had been refused. It is his evidence that in August of last year, he made an application to be transferred and in October of last year he commenced making applications to various private enterprise organisations for work in Australia.
In April of this year he applied to the Defence forces for a position. It is his evidence that in late May of this year that on branch of the defence forces indicated that it would not offer him a position. He was told something by another in late May 2015, which made him think that there was a possibility of a position there. On 5 August of this year he was told that the transfer application that he had made could not be available until 2016. On 10 August he was told that the position with the Australian Defence Forces would not be available until October 2016.
On 11 August the father was told that he had had some success in relation to a particular civilian appointment at the stage of the first round interview. The position is that the father has made arrangements to return with his present wife, Ms G, to the United Kingdom with their child, who is a baby of some months of age, on or about the 29^th day of August.
Parenting orders are made by reference to the best interests of the child. There is a sequence of decision making following a presumption in relation to parental responsibility which requires certain considerations to be made. And the indicia of what would be in the child’s best interests are found in s 60CC of the Family Law Act1975 (Cth) (“the Act”).
The orders sought by the parties were contained in documents that were made exhibits, the father’s proposals in exhibit 1 and the mother’s proposals in exhibit 2. They, each of them, contain a horrifying level of detail in relation to parenting arrangements. I indicated to the parties on Friday that I was not sanguine about reconciling the documents and I was somewhat critical of the parties for providing inconsistent proposals in two documents that cannot be reconciled or easily compared. I remain not sanguine about being able to adequately address the issues that have been identified by the parties. The advocate for the Independent Children’s Lawyer (“ICL”) expressed similar concerns on Friday last to the point where she was unsure as to whether she had been able to fully address each of the matters in issue.
The overwhelming characteristic of the proceedings involves venomous relations between the parents and, sadly, what appear to be equally venomous relations between their lawyers. In relation to the application to vacate the hearing date, the solicitor for the father indicated that she had been unwell and that had affected some of the notification that might have flowed, one firm to the other. There was not the normal cooperation or understanding in relation to those circumstances. It is apparent that far from providing a buffer or a break against the paucity of the parties’ own relationship, at times, at least, the parties’ solicitors seem to have joined in the confrontations.
The parties had the assistance of a single expert report. Dr A provided a report dated October 2014. Her report went to the broad issues relating to an arrangement whereby both parents lived within the jurisdiction and so it does not have direct bearing on arrangements in circumstances where the father is to live in the United Kingdom. There are some things from Dr A’s report that are universal propositions. But there are other aspects about which, through no fault of the expert, there are no recommendations.
As to the progress of the proceedings, it appears to be anticipated that the father, his wife and child will return to the jurisdiction in about October next year. I was not asked to make any specific directions about that. The proceedings will obviously need to be revived at that point. Assuming that happens and depending on the circumstances of the parties, further directions will need to be made to get the matter ready. The parties have traversed, in their proposals, arrangements for future school holiday times including alternate Christmases and so on.
I am was reluctant to embark on an enquiry that stretched too far into the future because one would hope that before a year has passed after the return of the father, the matter might have been the subject of final orders. Having said that, of course, the parties have secured final orders in the past. And many of the orders they seek today bear a remarkable resemblance to the orders that are already in force. So I do not know quite what their expectation is, why they think another order would be more effective than the one that has not provided an effective regime to date.
On the positive side of things, the mother at paragraph 32 of her most recent affidavits reports that the child’s visits with her father have been going well. She says that the child has been doing well academically and socially, that she also excels at swimming. The child undertakes athletics and she is playing the clarinet. So there is there some suggestion that despite the tension between the two households, the child is doing reasonably well. That is a very positive state of affairs.
As I say, the parties have managed to set out their minutes of orders in a way that makes it very difficult for them to be reconciled. Doing the best I can:
The commencement of the journey in relation to Part VII is parental responsibility. If the Court is to make an order that the parties have equal shared parental responsibility then and there is a presumption that that would apply then the Court is to consider certain patterns of living arrangements. In circumstances where the parties’ proposals are not all that different and in circumstances where an equal time arrangement is out of the question, many of those considerations ultimately fall away.
As to the situation in respect of parental responsibility – the 2008 orders do not seem to make any reference to parental responsibility. That would leave the position at general law where the parties each have parental responsibility. The interim orders made on 20 November 2013 make no mention of parental responsibility and that leaves the position at general law.
The parties have asked for parental responsibility orders, the mother seeking sole parental responsibility and the father seeking equal shared parental responsibility. I am not satisfied that it is in the child’s best interests that I make an order about parental responsibility. The parties have parental responsibility. With the father out of the jurisdiction, that necessitates the mother’s more direct involvement with decision-making but, in my view, it is not necessary or appropriate to make an order.
The parties agree that all previous parenting orders should be discharged, although the father wants a variation of the current arrangements just to await his departure from Australia on 29 August. That is sensible, I think, just so that there is one document with all of the orders in it, but that is not to say that I can see the benefit in recasting some of the orders that have been made over time. Making slight changes to orders does not necessarily suggest that they will be any more effective.
The parties are agreed in the broad about the living arrangements, that is to say, they have made provision for the child to spend time, each of them, in Australia and in the United Kingdom with the father, and they each want orders made that the child otherwise live with the mother.
Before I leave parental responsibility, the child attends a religious school which, I understand, can take her through to high school. The mother seeks to reinforce that arrangement or confirm that arrangement. The father seeks that the parties be at liberty to enrol the child in a school of their choice. I indicated to the parties that I was minded to facilitate the father’s proposal. An enrolment does not mean that a child has to attend a particular school. The enrolment process need not be a process causing any embarrassment for a child.
If there is to be a controversy about the school to be attended by the child, and I think there may be if and when the father returns from the United Kingdom, he should be permitted to make the preliminary steps to facilitate the position that he wants, and I do not mean by that to foreshadow that I anticipate that an application to have the child attend a different school would necessarily be successful. It is an order contained at paragraphs 4 and 5 of his minute of orders. Well, in fact, five deals with providing a copy of these orders to a school. I am not quite sure what the benefit of that would be. Perhaps just to ensure that the school understood that it was permissible. I will make an order in terms of paragraphs 4 and 5. The father says it is on a without admissions basis. I have no idea what he means by that. So perhaps I will make order 4 without the preamble, commencing at “each”, and order 5 of exhibit 1.
While I am dealing with matters that have been already discussed with the parties, the father has a proposal, which has been agreed to by the mother, in relation to the child travelling to the United Kingdom in September-October 2015. The arrangement is set out in paragraph 6 to 10 of exhibit 1 and, as I say, it is substantially agreed between the parties.
I think there was some controversy about the father’s nominee returning the child to the mother at a place other than Sydney Airport. In circumstances where a stranger to the proceedings - this is Mr E and Ms E - is assisting the parties by accompanying their daughter to the United Kingdom, their convenience should be taken into account. I will make the orders as proposed by the father in their entirety. And so I make orders in terms of paragraphs 6 to 10 inclusive of exhibit 1. In fact, I indicated to the parties that I would do that on Friday, and I note that the orders in terms of paragraphs 6 to 9 inclusive are by consent
The next issue is that the father would like some additional time with the child. He sought time from last Friday until departure on 29 August 2015. So, in other words, he wanted the child to be with him from last Friday until he departs Australia and wanting then the mother to collect the child from the airport. In that regard there are some concerns in relation to the parties’ capacity to manage events where they come together. I think the safest course is just to leave the current arrangements in place, and perhaps this has happened by default. If that provides time between the father and the child, well and good. The child’s travelling under the parties’ agreement to the United Kingdom with Mr and Ms E on 19 September. That is quite soon and it seems to me that it is best to leave things as they are.
In relation to the s 60CC criteria, the parties want time overnight, block time, unsupervised, between the child and each other parent. It seems to me that it follows that there is a meaningful relationship between the child and each of the parents, and that any orders that are made should promote those relationships. As to the risk of the child suffering harm or the risk of abuse, which is the other primary consideration - a primary consideration that has priority over the important relationships between a child and the parents - I think the allegations that the parties make, one against the other, probably fall short of something that would suggest harm, including psychological harm, from abuse.
The mother’s concerns, for example, Dr A asked her about the allegations of inappropriate touching, and the mother told her that the child had reported to her that her father rubs me between my legs and it really hurts me, that that had happened when she was aged about five or six. And Dr A said that she had read the material from Hospital I and the child protective agencies and she asked her mother whether she thought the father had approached B in a sexual way or whether his behaviour was inappropriate, touching of a child while washing, and the mother said to Dr A she did not think it was sexually inappropriate or sexual behaviour but, rather, the father not knowing how to wash her properly.
The mother said that the father had been not appropriate because he insisted on showering with the child. She said that the child had complained to her about that, because she was scared to tell her father herself. I should mention two background factors that have affected the proceedings to some extent. The mother suffers Crohn’s disease and that has been typically debilitating for her, has added to or exacerbated the problems, the impact of stress on her, and the mother made some concessions to Dr A about what that had done on occasions to her communication, interaction and relationship with her daughter.
The other aspect of the case that takes it a bit out of the ordinary is the mother is very critical that the father did not take up time provided for in the 2008 orders. It is the father’s case - and I do not know that there is any real challenge to it - that he was posted to the Middle East. And one can understand that such a posting, just on the basis of time, may well have interfered with him servicing a relationship on the other side of the globe.
Next, there are additional considerations, Dr A spoke to the child in 2014. She was then in a year 3/4 composite class at school. She had to be reassured on a number of occasions that there were no right or wrong answers in Dr A’s interview and that she would not be in trouble for expressing her views. That is of concern, obviously. The child relaxed through the interview. She said that it was hard being with her mother and then being with her father. She worries about her mother and she worries about her father when she is with her mother:
I worry that if I have a good time with dad, then mum will be upset.
She told Dr A.
She noted that it can be difficult transferring between the care of each of her parents. She is aware that her parents do not like each other:
Mum has mentioned it a bit – that she hates dad.
She was asked about her father and said that dad does not mention her. She thought that her mother wished that she was with her a bit more. She said she felt guilty if she did not say to her mother that she was missing her. She gets sick of her parents talking about their problems:
They say one person is mean and then they say it back.
B told Dr A. She thought that mum used to do that a lot, but sometimes both her parents do it. She gets some counselling help from a therapist called Ms J. She was asked about her wishes and she said:
I want more time with both of them. I want to keep everyone happy. I don’t know who to be with.
And she feels guilty about thinking about it.

She was asked whether she felt any adult had hurt her, and she told Dr A that that had never happened. She did not feel scared or worried about anyone in either household, she said, and she felt that her privacy was respected in both households. These proceedings resumed or recommenced in 2012, so the current incarnation of Part VII would seem to apply. The next provision is the nature of the relationship of the child with each of the child’s parents and other people.
Dr A observed that the child and her mother sat very close together, that they appeared to have a reciprocally warm physical relationship. There was a level of anxiety observed by Dr A in relation to the mother and daughter. She noted that when the mother’s partner entered, the child immediately lit up, and that their body language and conversation suggested a warm and comfortable relationship. The child seemed much less anxious once Mr C joined the conversation, and this is despite the fact that the mother and Mr C do not live together.
B moved from the mother to the father for the observations. She appeared quiet, though she did have a warm and physical reunion with both her father and his wife. Dr A understood that no words were exchanged nor was there any acknowledgment between the child and her father at the point when she moved from the mother’s presence to the father’s presence in the waiting area of Dr A’s practice. A level of discomfort had been observed by Dr A’s staff in that regard. Later, the child gave her father a cuddle, sat closely with him.
At one stage, she spontaneously launched herself into his lap and cuddled him. The child went off with her father and Ms G for lunch and she returned visibly relaxed, forthright and confident. She was able to answer questions and was playful and gregarious, so she had relaxed considerably after lunch with her father. Dr A commented particularly on the very warm and physically close relationship between The child and Ms G – two of them laughing and having them jokes. the child physically gravitated towards her at times. She particularly wanted Ms G to show Dr A some photographs.
Throughout the observation, the child appeared relaxed and confident. She was laughing and behaving in an irreverent way. She was able to correct or disagree with both her father and Ms G. Her physical behaviour indicated that she had a very close, warm relationship with both of them, and sought and received affection from both of them. Neither of them sought to override or answer on her behalf. I recall that is a little bit different to something that happened with the interview with the mother, whereby the mother corrected the child in relation to some matter to do with packing her bag.
Nextly, there is reference, also, to a close relationship between the child and her baby sibling. When Dr A saw the parties, of course, Ms G was five months pregnant but the child, even then, was coming and talking to the baby, which means coming up to Ms G’ stomach and whispering, and she was very much looking forward to her role as a big sister. Dr A mentioned the controversy between the parties about Ms G being referred to in the mother’s household as “…”, presumably a play on Ms G, and the child being unaware that it was not a girls’ name and having to be told that it was inappropriate, and something that the father has complained about, and that is a reference to him as “…” – I think his first name is … – and that was something that is very concerning in the father’s household.
Nextly, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent. There was a significant concern about a negative portrayal of the father and his wife in the mother’s household. There are no conclusions possible about that, but it is certainly an issue raised in the proceedings. I suppose one thing to say about that is, on Dr A’s evidence, and, more broadly, although the child feels under pressure to support each parent in their presence and is aware of the criticism of the other parent by each parent, the relationships seem to be basically sound.
As to the willingness and ability of each of the parents to facilitate and encourage a close relationship, there is a concern about some alienation in the mother’s household. As to the likely effect of changes in the child’s circumstances, I suppose the main issue here relates to the point at which the child travels unaccompanied. The parties have had in place, since 2008, orders that would provide for the child to travel unaccompanied from age of 12. The mother does not agree with that now. The child’s representative and her representative would support unaccompanied travel being held off.
The arrangement put in place by Stevenson J provided for many trips from 2008. In fact, there was only one trip by the child to the United Kingdom when she was young, and there has not been another one. The child does not have experience of the 24 hour plus travel to the United Kingdom. There is travel in prospect, but it will be assisted by the Es in September/October this year. The ICL initially said, “Leave the arrangement as planned by Stevenson J”, but then resiled from that and thought it would be best if the child continued to be accompanied. I think that is right.
Even at 11 or 12, travel for 24 hours can be a very difficult thing. It is unpleasant for adults, and for a child that does not have much experience of it, it could be worrying and concerning. For want of a bit more patience in relation to that, I think it is better to err on the side of caution and have accompanied travel. I understand from the father’s submissions that that will mean that the travel he proposed in paragraph 11 for December 2015 to January, and then in April next year that will mean those times will be spent in Australia.
I am not quite sure about the July trip, but I will make provision for the July trip to be accompanied travel. Indeed, all of the travel to be accompanied, and it will just be a matter of the father confirming, perhaps, 28 days beforehand whether he intends any of those trips to be exercised other than in Australia. There is a related issue, perhaps, while I am dealing with this question, and that is the parties do not agree about the December trip. There is a further issue whereby the mother wants the child returned to Australia 48 hours before the handover back to her. In other words, to cover the jetlag problem, and I do not see a major issue with that and will make no allowance for the mother’s proposal.
There is a question of the duration of the December travel. The father wants 28 December 2015 to 25 January 2016. Although her minute of orders says something different – it says 22 days from the start of the holidays, I think – the mother, by way of submissions, said from 10 to 22 December, and I understand that related to evidence about some visitors coming from overseas to be with the mother, and there is also an issue about a camp in the second half of the January school holidays. I am going to make the orders sought by the father.
There is some concern expressed on behalf of the child by the ICL in relation to the priority given to the father’s time with the child. There is some concern similarly expressed by Dr A in relation to those things, and certainly the law has it that priority would be given always to the relationship and contact between the father and a child compared to extended family members and compared to extra-curricular activities. If it pleases the parties to make arrangements for camps or other extra-curricular activities, if it pleases the father to facilitate the child’s attendance at the camp at the second half of the school holidays, well and good, but it should be a matter for him, it seems to me, rather than something that the court would impose.
The other thing to say is that there is going to be an interruption in what has been close and regular contact between the child and her father. In my view the Court to do what it can to remedy that situation.
Nextly, there are the practical difficulties and expenses of a child spending time with a parent. The problems are obvious in relation to travel to the United Kingdom.
Nextly, there is a criterion in relation to the capacity of the parents and others to provide for the needs of the child, including emotional and intellectual needs. There have been some problems. There is not much doubt about it. The parties have allowed the paucity of their relationship to interfere with their judgment at times in respect of the child, and the proof of that is a child who has said to Dr A and demonstrated that she feels caught in the middle between her parents. She feels put to a test of loyalty in relation to the absent parent and conversely she feels not in a position always to say nice things and to speak openly about the other parent when in the care of one of her parents.
Nextly, maturity, sex, lifestyle and background of the child. I think I have said what I know about that. She is doing pretty well.
The attitude to the child and responsibilities of parenthood. Dr A is very complimentary in relation to the struggle the mother has had caring for the child without much assistance for many years. The mother raised with Dr A, and it is a feature of these proceedings, that she is very critical of the father’s lack of financial support of the child. There are issues about the payment of child support, arrears of child support, issues about his representation about his income, and, as Dr A says, if the mother’s allegations are true then that indicates a very poor attitude and some irresponsibility on the father’s part.
Those issues cannot be adequately tested here. There is a mechanism for child support to be dealt with elsewhere. There are problems in relation to a payer who is outside the jurisdiction, but it is not something that I can make a finding about. If it is established on a final basis that the father has failed in this regard, then that is something that will reflect poorly on him.
The parents seem to have a dispute about the child’s religious upbringing. It is not quite clear the extent of that. Certainly, I am not asked to address it. As to the nature of the relationship with each of the parents and others, Dr A observed a very close emotional and enmeshed relationship with the mother. She says that she and the mother have developed an extremely close and synchronised routine. There are some positive aspects to that, and the child is developing well in all fields of her life.
On the other hand, there are some problematic elements, Dr A thinks, and in isolation they are probably only minor. the child has a rather dependent relationship on her mother. She was regressive and not independent or confident or engaged when Dr A saw her with her mother, and that contrasted with her presentation when she was by herself or with her father. Dr A noticed that the child said that her mother does things for her that are more than Dr A would expect a parent would do for a 10 year old child. The child struggled being able to express a view that she knew to be contrary to her mother’s.
The mother had said that the child had said to her, “don’t take this the wrong way, Mummy”, when expressing a positive sentiment towards her father, and Dr A thought that the majority of time, the child has felt burdened to represent negative concerns about the father to the mother. The psychologist that the child sees has opined that the child wants to get on with her life with the mother with less focus or discussion on the issue. The child said to Dr A something about the difficulty of having questions asked, and in her awareness of the fact that her mother mentions her hatred of the father, and she feels guilty about expressing positive views of the father.
There is a loving, close relationship between mother and child but with the caveat Dr A identified in relation to a level of enmeshment. Dr A says the implicit messages from the mother have contributed to enormous pressure on the child to respond in a manner consistent with the mother’s views.
As to the father, Dr A thought that the child had developed an understanding that her father is a somewhat intermittent visitor in her life, someone who lived a long way away, someone she saw on holidays for block periods but she very much enjoyed the time with him. Dr A is unsure about the strength of the attachment between the child and her father. The time in Australia has benefited the relationship in many ways. Dr A notes a similarity between the child and her father, deeper sense of self-confidence and positive identity in the father. She learns new things. She manages the transition to her father’s care more easily than she used to.
Again, Dr A is not confident in evaluating the relationship between father and daughter – about the degree to which the child feels this is a comforting or emotionally-secure relationship. That is not said to criticise the father but it is just a fact of the interruption in their relationship, Dr A says. If their relationship was to continue to develop in a positive and everyday manner, Dr A is confident that the child would quickly develop a strong sense of emotional and identity attachment to her father. Dr A found it extraordinary that in the circumstances that presented for the child, the child has maintained a sense of loyalty to her father.
That suggests that her personality and temperament are closely aligned with his. Dr A found very supportive and appropriate and warm relationships between the child and her parents’ partners. As to family violence, Dr A did not think there was anything significant in terms of the physical fears expressed. We do not know of a family violence order. Dr A, relevant to communication, was concerned about the child’s current, almost unrestricted access to a mobile phone. She thought that the use of a phone implicitly contributes to the child’s anxiety and it sends a message that she is possibly unsafe with her father.
She does not need to rely on a phone at school, at church, ice skating and many activities when she is not with her mother and Dr A recommended that her access be limited for short designated periods every few days or entirely dispensed with and for communication to occur via a landline. Dr A recommended a conservative approach for the child to spend an increased amount of time with her father and to have the situation reviewed in eight to 12 months’ time and to see that she is able to tolerate more significant separation from her mother.
She thought that should involve the child spending further overnight time so that she was spending five nights a fortnight with him, more substantial periods during school holidays. Of course, those recommendations were made when it was thought that the father was going to remain in Australia indefinitely. Coming back to the orders proposed by the parties, as to the telephone communication, the father proposes every third evening by the mother calling the child on her mobile phone. That is in line with the recommendations of Dr A. In discussion on Friday, it was accepted that there would, in addition to that – in relation to overseas travel – be a call facilitated by the father as soon as practicable after the child’s arrival in the United Kingdom.
There is some issue in relation to communication about the mother’s access to Skype. She does not have a computer, apparently. She uses a computer not in her household. The father’s proposal is by a 3G or 4G iPhone. I did not hear from the mother as to whether she has such a phone. I understand there may be some problems in terms of the reception where she lives. I will make the orders that the father is proposing and the mother will just have to do her best. It might mean that the mother cannot be present at her Suburb K home, if that is the place where there is a problem, for this communication.
I do not know enough about the Skype capacity in the mother’s household. If I make an order that cannot be complied with, that is unfortunate. Perhaps the orders that the mother proposes and the format of the orders that the mother proposes would be better. I will make the orders that the mother has under the heading, Communication at paragraph 21. The only change would be to provide that it would be on every third day at paragraph 21 to provide after 7.30 pm in 25A on the appointed days. And those orders are reciprocal.
There is an issue about passports. Again, the fact that you would need to make such orders is a worry. The orders that were made originally, apparently, have left the parties in a position where they have had to bring the matter back to court in the past. There is an agreement between the parties that the father can uplift the child’s UK passport for the purposes of attempting to secure for her a visa endorsement, which would permit, ultimately, him being able to use that passport for the purposes of her travel to the United Kingdom, something that cannot be done now.
There is a dispute in relation to the Australian passport. I think probably the most practical solution is that the father be permitted to collect it as soon as is convenient to him and that he arrange for the Es to return that passport to the mother on the return of the child at the end of the September/October travel and provide for the mother to deliver the passport to the father or his nominee not later than seven days before future travel, and so on.
That leaves the issue of the time the child will have with the father outside those holiday periods. It seems to me that that time should be calculated to maximise the opportunities for the father and the child, and the father will need to give notice to the mother. And the parties have talked about 28 days being the appropriate notice of each occasion. I think the best I can do is make an order in the general terms of paragraph 23. That will be in addition to the times that are mentioned in paragraph 11 of the orders the father seeks. I will delete the reference to further leave entitlements just for clarity. So that there are the times identified in 11. In addition to that there will be not less than six weeks under the conditions that are listed at paragraph 23, which seem appropriate. The orders sought at 24 and 25 seem appropriate.
I will make an order in terms of paragraph 37 – which raises the issue about the child’s name. There is such a current order but it will be removed on the agreed revocation of all current orders. This is not the opportunity or the appropriate time to change the child’s name. There is a controversy between the parties about it. There is some suggestion that the child has been known by the mother’s surname without the agreement of the father. For the time being nothing should be done other than her being referred to as the name under which her birth was registered.
There are a raft of consequential orders at 38 to 43. I am not going to make those orders. The mother needs to act consistently with order 37, and I am not going to take the matter any further at this stage.
There is a controversy between the parties about the child referring to the father as “…”. The mother says that is a truncation of dad and gives some examples in correspondence. The father says, I gather, that it is a reference back to him being referred to as “…”. If you have to place too many restrictions on a child I think it speaks more about the parents rather than the child. So I will leave the orders as the father has drawn them. The parties need to be sensitive about this and obviously not punish the child.
Going through the mother’s – there are a number of definitions in the mother’s proposed orders exhibit 2 about the father being in breach of orders and things. I do not really understand the point of all of that. I think the mother is trying to define a situation when the father comes back to live in Australia indefinitely. I will chance my arm and hope that the parties were able to work that out without the sort of definitions that the mother is identifying. I have made orders on the basis of the father’s proposals that deal with 10 to 19. Well, I say that, I have not formally made orders about a future Christmas holiday. Perhaps just so that there is something in place I will make orders that the mother has identified at 17, 18 and 19 but replacing “2015” in 17 with “2017”.

I have addressed 2015 Christmas specifically. Paragraph 19 takes up 2016. Paragraph 17 takes up 2017, heaven forbid that we get to that point under interim orders. The mother seeks orders about facilitating information passing from school. An attempt was made at this in earlier orders, and obviously it has not worked satisfactorily. The common sense approach is that the parties do all things to cause the school to provide documents directly to the father and that in relation to things that are not provided directly to the father the mother facilitate those documents being provided to the father. That is the logical approach for the period when the father is outside the jurisdiction.
I do not understand paragraph 45 of the mother’s proposals. Paragraph 46 is not something that is required. There is no suggestion the child is struggling at school. There is no suggestion that either of the parties intends to take her out of school for a significant period. That is a matter for judgment.
The mother wants the parties restrained from taking the child to a country that is not a signatory to the Hague Convention. That affects some transit arrangements, so I am not going to make that order.
Paragraph 49 interferes with the orders I have already made and I will not make that order. Paragraph 50 is a sensible arrangement. I will add after “handover” at the end of paragraph 50, “if practicable”. I do not understand what 51 achieves. I have made an order in terms of 53, in effect. I have dealt with 54, 55, 56.
As to 57 – I think it was conceded in the mother’s case that it makes no sense. I have added the words “is in Australia and is” after the word “father” where it first appears.
The issues raised in 59 are appropriate issues. They deal with the privacy of the child. The child has recorded her satisfaction and comfort about it. There are some concerns in the mother’s household. For 11 year old girls, unfortunately perhaps, their relationship necessarily changes with their fathers and with other male relatives and it seems to me that the circumstances that are addressed are sensible. The problem arises in relation to accidental issues. For example if a child walks into a room naked, for example, where the father is, then there can be a suggestion of a breach of the order, and a source of conflict between the parents. Perhaps I will make an order in terms of those practical steps.
I think I have addressed all of the issues. The parties, no doubt, will bring the matter to attention if there is some issue that has not been addressed. I formally give them leave to do that on seven days’ notice. If they reach an agreement about an issue that is not addressed, they can approach my chambers with a minute of the amending order.

I certify that the preceding eighty two paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 24 August 2015.

Associate:

Date: 12 October 2015

[2015] FamCA 845

24 August 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Jurisdiction

Procedural Fairness

Remedies