FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLANCHARD & HERMANN | [2014] FCCA 2143 |
| Catchwords: FAMILY LAW – Parenting matters – mother’s application to relocate to the United Kingdom with the parties’ two young children aged 10 and 7. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Taylor v Barker (2007) 37 Fam FLR 461 Sigley & Evor (2011) 44 Fam LR 439 |
| Applicant: | MR BLANCHARD |
| Respondent: | MS HERMANN |
| File Number: | DGC 234 of 2014 |
| Judgment of: | Judge Bender |
| Hearing dates: | 14, 15, 25 August 2014 |
| Date of Last Submission: | 25 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 1 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hall |
| Solicitors for the Applicant: | John Conquest Lawyers |
| Counsel for the Respondent: | Mr Puckey |
| Solicitors for the Respondent: | Resolve Conflict Lawyers |
ORDERS
The mother have sole parental responsibility for the children X born (omitted) 2004 (“X”) and Y born (omitted) 2007 (“Y”).
X and Y live with the mother.
The mother, X and Y be permitted to relocate to the United Kingdom as from 1 April 2015.
The Order of the Federal Circuit Court of Australia restraining the removal of X, female, born (omitted) 2004 (“X”) and Y, male born (omitted) 2007 (“Y”) from the Commonwealth of Australia 3 February 2014 be discharged.
The Australian Federal Police remove the names of X and Y from the Airport Watch List at all points of international arrivals and departures in Australia.
Prior to the mother, X and Y relocating to the United Kingdom, X and Y shall spend time with the father as follows:
6.1For a period of not less than three months, from 10.00am to 5.00pm on the first two of each three Saturdays in a three week cycle commencing 6 September 2014 with such time to be supervised by any of the paternal aunts, Ms N or Ms C, the paternal grandfather, Mr M or the paternal grandmother, Ms D or such other supervisor as agreed between the parties in writing, noting however on the Father’s Day weekend X and Y will spend time with the father on Father’s Day rather than on the Saturday and changeover shall occur outside (omitted) Shopping Centre unless otherwise agreed between the parties in writing.
6.2Upon X and Y spending time with the father pursuant to order 6.1 hereof and upon the father:
(a) complying with orders 15 and 16 herein; and
(b) supplying drug screens negative for any illicit or unexplained prescribed substances; and
(c) providing to the mother a written report from his treating psychiatrist at the father’s expense confirming the father has attended all appointments as directed, is compliant with his medication regime, that the father’s mental health is stable and that the father poses no risk to X and Y if he spends unsupervised time with them;
the father shall spend unsupervised time with X and Y as follows:
(i)From 10.00am to 5.00pm each Saturday for four occasions and thereafter;
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- Blanchard and Hermann [2014] FCCA 2143
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- [2014] FCCA 2143
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CaseChat Overview and Summary
The court was tasked with determining whether to grant the mother sole parental responsibility for the children, permit their relocation to the United Kingdom, and discharge existing orders restraining their removal from Australia. Additionally, the court had to establish a comprehensive schedule for the father's time with the children, both before and after the potential relocation, taking into account specific conditions related to the father's compliance with treatment and drug screening. The court also considered the financial responsibilities for the children's travel and communication arrangements.
In its reasoning, the court applied the principles of the best interests of the child as paramount. The orders reflect a carefully considered balance between the children's established life and relationship with their mother in Australia and their potential future in the United Kingdom, alongside the father's ongoing role in their lives. The court imposed stringent conditions on the father's unsupervised time with the children, including mandatory psychiatric and psychological treatment compliance, regular drug testing, and disclosure of treatment progress to the mother, to ensure the children's safety and well-being. The court also ordered the mother to seek reciprocal orders in the United Kingdom to ensure the enforceability of the parenting arrangements.
The court ordered that the mother have sole parental responsibility for X and Y, and that the children live with her. The mother, X, and Y were permitted to relocate to the United Kingdom from 1 April 2015, and the previous order restraining the children's removal from Australia was discharged. Detailed provisions were made for the father's supervised and unsupervised time with the children, both before and after the relocation, along with specific requirements for communication and financial contributions towards travel. The court also made orders restraining the father from ingesting illicit substances and requiring him to undergo random drug screens, and ordered both parties to refrain from denigrating each other in the presence of the children.
Orders
Orders of the court
1.
The mother have sole parental responsibility for the children X born (omitted) 2004 (“X”) and Y born (omitted) 2007 (“Y”).
2.
X and Y live with the mother.
3.
The mother, X and Y be permitted to relocate to the United Kingdom as from 1 April 2015.
4.
The Order of the Federal Circuit Court of Australia restraining the removal of X, female, born (omitted) 2004 (“X”) and Y, male born (omitted) 2007 (“Y”) from the Commonwealth of Australia 3 February 2014 be discharged.
5.
The Australian Federal Police remove the names of X and Y from the Airport Watch List at all points of international arrivals and departures in Australia.
6.
Prior to the mother, X and Y relocating to the United Kingdom, X and Y shall spend time with the father as follows:
6.1 For a period of not less than three months, from 10.00am to 5.00pm on the first two of each three Saturdays in a three week cycle commencing 6 September 2014 with such time to be supervised by any of the paternal aunts, Ms N or Ms C, the paternal grandfather, Mr M or the paternal grandmother, Ms D or such other supervisor as agreed between the parties in writing, noting however on the Father’s Day weekend X and Y will spend time with the father on Father’s Day rather than on the Saturday and changeover shall occur outside (omitted) Shopping Centre unless otherwise agreed between the parties in writing.
6.2 Upon X and Y spending time with the father pursuant to order 6.1 hereof and upon the father:
(a) complying with orders 15 and 16 herein; and
(b) supplying drug screens negative for any illicit or unexplained prescribed substances; and
(c) providing to the mother a written report from his treating psychiatrist at the father’s expense confirming the father has attended all appointments as directed, is compliant with his medication regime, that the father’s mental health is stable and that the father poses no risk to X and Y if he spends unsupervised time with them;
the father shall spend unsupervised time with X and Y as follows:
(i) From 10.00am to 5.00pm each Saturday for four occasions and thereafter;
(ii) From 10.00am to 5.00pm Saturday and Sunday for the first two weekends in each three week cycle for four occasions and thereafter;
(iii) From 10.00am Saturday to 5.00pm Sunday for the first two weekends in each three week cycle.
(d) Changeover shall occur at (omitted) Shopping Centre unless otherwise agreed between the parties in writing.
6.3 For no less than four hours on Christmas Day 2014 as agreed between the parties and failing agreement from 4.00pm to 8.00pm and if X and Y have not started spending unsupervised time with the father, such time to be supervised by any of the supervisors named in order 6.1 herein.
6.4 By telephone or Skype at all reasonable times as agreed between the parties and failing agreement, each Tuesday, Wednesday and the Sunday of any weekend that Y and X have not spent time with the father between 6.30pm and 7.00pm and if X and Y will not be at home at this time the mother shall ensure X and Y have their mobile phone with them.
6.5 As otherwise agreed between the parties.
7.
Upon the mother, X and Y relocating to the United Kingdom:
7.1 If the father has commenced spending unsupervised overnight time with X and Y prior to X and Y relocating to the United Kingdom, and neither of the father’s treating psychiatrist or treating psychologist has contacted the mother to advise the father is not complying with their directions as to his treatment or that they have formed the view that X and Y would be at risk if they were to spend unsupervised time with the father then X and Y shall spend time and communicate with the father as follows:
7.1(a) In 2015 and 2016 for three weeks in each of the United Kingdom long summer vacations and for two weeks in each of the United Kingdom winter and spring vacations in Melbourne for such times as agreed between the parties and failing agreement as follows:
(i) On the first occasion such time occurs:
(x) In the first week from:
· 10.00am on Day 1 to 12.00pm noon on Day 2;
· 10.00am on Day 3 to 12.00pm noon on Day 4; and
· 10.00am on Day 5 to 5.00pm on Day 6.
(y) In the second week from:
· 10.00am on Day 1 to 12.00pm noon on Day 3; and
· 10.00am on Day 4 to 5.00pm noon on Day 6.
(z) In the third week from:
· 10.00am on Day 1 to 12.00pm noon Day 4; and
· 10.00am on Day 5 to 5.00pm on Day 7.
(ii) On the second and third occasions that such time occurs for five consecutive days in each week;
(iii) On the fourth occasion that such time occurs for two periods of seven consecutive days and one period of five consecutive days separated by 24 hours with the mother; and
(iv) On the fifth occasion that such time occurs for one period of not less than ten days.
7.1(b) Commencing in the Spring vacation 2017 and provided the father has spent time with X and Y pursuant to order 7.1(a) herein, for at least 10 days in each of the winter and spring United Kingdom school vacations and at least 21 days in the long United Kingdom summer vacation in Melbourne.
7.2 If prior to the mother, X and Y relocating to the United Kingdom the father has not commenced spending unsupervised time with X and Y then X and Y shall spend time with the father for three weeks in the United Kingdom long summer vacation and two weeks in each of the United Kingdom spring and winter vacations in Melbourne and such time shall be each alternate day from 10.00am to 5.00pm with such time to be supervised by any of the supervisors named in order 6.1 herein or such other supervisor as agreed between the parties in writing.
7.3 During any period the father is in the United Kingdom as agreed between the parties save that in the event X and Y have not been spending unsupervised time with the father in Australia such time will be supervised by such person as agreed between the parties and failing agreement as nominated by the mother.
7.4 By Skype each Wednesday and Saturday at such times as are reasonably practicable to accommodate the time difference between the United Kingdom and Melbourne.
7.5 By telephone as agreed but no less than twice a week on days when there has been no Skype communication at such times as are practicable to accommodate the time difference between the United Kingdom and Melbourne;
7.6 Such further or other times as are agreed between the parties in writing.
8.
The mother shall pay all necessary costs associated with X and Y spending time with the father in Melbourne for two periods each year, such periods to be for the long summer vacation and either of the winter or spring vacation to be nominated by the mother in writing no later than 14 February each year and the father shall pay all necessary costs for X and Y spending time with the father for the third period each year, such necessary costs of the father to include return airfares for X and Y and for the mother or such other agreed adult person to accompany X and Y and the father shall provide the mother proof of purchase of such return fares no less than 28 days prior to the departure date, failing which the time that X and Y are to spend time with the father in Melbourne for that third period shall not take place.
GENERAL
9.
When X and Y are spending unsupervised overnight time with the father pursuant to these orders, the father shall advise the mother of the address and contact telephone number of where X and Y will be spending overnight time in writing including text message no less than 24 hours prior to each overnight time.
10.
The father shall be restrained from ingesting illicit substances or any prescription drugs other than in accordance with the directions of his treating medical practitioners at all times.
11.
The father shall undergo random supervised drug screens within 24 hours of a written request to do so received from the mother or her legal representative, with such requests to be made no more than once per month over a period of 12 months from the date of these orders and the father is to provide the results of such screens to the mother or her legal representative as soon as possible thereafter.
12.
In the event the father fails to comply with Order 11 herein or if any of the father’s supervised drug screens are positive for illicit substances or for prescription drugs that are not explained by an up to date certificate/letter from his treating medical practitioner, the period in which the father is to submit to supervised monthly drug screens at the request of the mother shall be extended to a period of 2 years after the making of those orders and the mother shall be at liberty to make urgent application to this Court for a variation of the current spend time orders.
13.
The father shall continue to attend upon his treating psychiatrist Dr H or such other psychiatrist as recommended by Dr H (“his treating psychiatrist”) and comply with all recommendations of his treating psychiatrist including but not limited to attendance upon his treating psychiatrist as directed by his treating psychiatrist and taking all medication as prescribed by his treating psychiatrist.
14.
The father shall continue to attend upon his treating psychologist Ms M or such other psychologist as recommended by Ms M (“his treating psychologist”) with such frequency as recommended by his treating psychologist.
15.
The father shall forthwith authorise and continue to authorise his treating psychiatrist and his treating psychologist to immediately contact the mother either by telephone or email in the event:
(a) the father fails to comply with their recommended treatment; or
(b) they form the view that the father’s mental health will place X or Y at risk in the event they spend unsupervised time with the father; or
(c) the father purports to revoke this authority.
16.
For the purposes of Order 15 herein, the father shall forthwith provide his treating psychiatrist and treating psychologist with a copy of these orders and keep them appraised of the mother’s current contact telephone number and email address at all times.
17.
The father be permitted to attend all school events relating to X and Y as normally attended by parents and receive at his expense all school reports, school photograph order forms and newsletters.
18.
Each party shall advise the other of any serious illness or injury suffered by X and/or Y as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
19.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the X and/or Y, and from permitting any other person so to do.
20.
Each party keep the other informed at all times of their current residential address, contact telephone number and email address.
21.
The mother shall forthwith do all things necessary to make application by consent to the High Court of England to obtain “mirror” orders reflecting orders 1, 2, 3, 7-21 herein pursuant to the Children and Families Act 2014 (UK) (“the mirror orders”) and the father shall sign all necessary documents to enable such orders to be made by consent and if practicable the mirror orders shall be obtained prior to the mother, X and Y relocating to the United Kingdom pursuant to order 3 herein.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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