FAMILY COURT OF AUSTRALIA
Bligh & James [2021] FamCA 211
File number(s): SYC 5661 of 2017 Judgment of: WATTS J Date of judgment: 20 April 2021 Catchwords: FAMILY LAW – PARENTING – Final Orders – Whether a child be relocated to New Zealand – High conflict between the parties – Where the father has spoken of his distress and suicide – Consideration of the parent’s different proposals and s 60CC considerations – Orders for the mother to have sole parental responsibility (with consultation); the child to live with the mother in Australia; the child to have time with the father to be monitored for 12 months together with a suite of other prescriptive orders – Orders made relating to the costs of the single expert and the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA Cases cited: Bolitho and Cohen (2005) FLC 93-224
Godfrey & Sanders [2007] FamCA 102
Rochford & Fitzhugh [2019] FamCAFC 218
U v U (2002) 211 CLR 238
Number of paragraphs: 308 Date of hearing: 8 - 12 March 2021 Place: Sydney via Microsoft Teams Counsel for the Applicant: Mr Ford Solicitor for the Applicant: Diamond Conway For the Respondent: Litigant in person Solicitor Advocate for the Independent Children's Lawyer: Ms Karagiannis Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 5661 of 2017 BETWEEN: MS BLIGH
Applicant
AND: MR JAMES
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
WATTS J
DATE OF ORDER:
20 APRIL 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Parental responsibility
2.Subject to Orders 3 – 7, the Mother have sole parental responsibility of the child, Z James Bligh, born … 2012 (“Z”).
3.Neither parent shall do anything to have Z known by any other surname than “James Bligh”.
4.In relation to any decision the Mother is required to make in relation to education, religious and cultural upbringing, health, changes to Z’s living arrangements that would make it significantly more difficult for Z to spend time with his Father and any other decision impacting upon the long-term welfare of Z, the Mother is to undertake the following actions before making such decision:
(a)The Mother is to provide the Father with no less than 14 days’ notice in writing of any such proposed decision; and
(b)The Mother is to consult with the Father with regard to any such proposed decision and make a genuine effort to give consideration to his expressed view and, should the relationship between the parents permit, make a genuine effort to reach agreement with the Father about any such proposed decision; and
(c)In the event that no agreement is reached between the Mother and the Father, the Mother shall make the final decision and within 14 days of so doing, provide the Father with written confirmation of the decision.
(d)All communication is to be by way of ‘Our Family Wizard’ or similar parenting application, if ‘Our Family Wizard’ is discontinued.
5.To avoid doubt, Order 4 applies to…
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- Bligh & James [2021] FamCA 211
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- [2021] FamCA 211
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CaseChat Overview and Summary
The court was required to determine the best interests of Z, considering the factors outlined in section 60CC of the *Family Law Act 1975* (Cth). Specifically, the court had to assess the differing proposals of each parent for Z's future, the high level of conflict between them, the father's expressed distress and suicidal ideation, and Z's own expressed wishes to return to New Zealand due to his family residing there. The court also had to consider the evidence of a single expert, Dr L, regarding the parents' capacities and Z's welfare.
Watts J made orders discharging all previous parenting orders. The mother was granted sole parental responsibility for Z, with specific provisions requiring her to consult with the father on significant decisions concerning Z's education, health, and long-term welfare, and to provide him with written notice of proposed decisions. Communication between the parents was to be conducted via a designated parenting application. The court made detailed orders regarding Z's living arrangements with the mother in Australia and prescribed a schedule for Z to spend time with the father, including provisions for travel to and from New Zealand. The father was restrained from keeping guns and was required to provide authorities to his treating psychologists and therapists to inform the mother of any deterioration in his mental health or suicidal ideation. The court also made orders regarding the costs of the single expert and the Independent Children's Lawyer.
Orders
Orders of the court
SYC 5661 of 2017
BETWEEN:
MS BLIGH
Applicant
AND:
MR JAMES
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
WATTS J
DATE OF ORDER:
20 APRIL 2021
THE COURT ORDERS THAT:
1. All previous parenting orders be discharged.
Parental responsibility
2. Subject to Orders 3 – 7, the Mother have sole parental responsibility of the child, Z James Bligh, born … 2012 (“Z”).
3. Neither parent shall do anything to have Z known by any other surname than “James Bligh”.
4. In relation to any decision the Mother is required to make in relation to education, religious and cultural upbringing, health, changes to Z’s living arrangements that would make it significantly more difficult for Z to spend time with his Father and any other decision impacting upon the long-term welfare of Z, the Mother is to undertake the following actions before making such decision:
(a) The Mother is to provide the Father with no less than 14 days’ notice in writing of any such proposed decision; and
(b) The Mother is to consult with the Father with regard to any such proposed decision and make a genuine effort to give consideration to his expressed view and, should the relationship between the parents permit, make a genuine effort to reach agreement with the Father about any such proposed decision; and
(c) In the event that no agreement is reached between the Mother and the Father, the Mother shall make the final decision and within 14 days of so doing, provide the Father with written confirmation of the decision.
(d) All communication is to be by way of ‘Our Family Wizard’ or similar parenting application, if ‘Our Family Wizard’ is discontinued.
5. To avoid doubt, Order 4 applies to any proposal by the Mother to change the school in which Z is enrolled from time to time and additionally:
(a) Such notification to be given to the Father not less than 28 days prior (an extension of the normal 14 days notice period) to the Mother lodging an enrolment application with the new school;
(b) The notification to include the name and address of the new school and a brief outline of the reasons for changing the school; and
(c) The Mother shall provide the Father’s contact details in any enrolment at a new school.
6. The Mother shall keep the Father informed about Z’s consultations with any medical specialist, including:
(a) The date of any appointment for Z with the medical specialist;
(b) Any diagnosis in respect of Z’s health;
(c) Any treatment program for Z;
(d) Any medication prescribed for Z.
7. The Mother is to keep the Father informed of all ongoing medical issues and treatments being undertaken by Z and is to provide to the Father the names and addresses of any other practitioner with whom Z has consulted.
8. In the event of a medical emergency, the parent who has the care of Z is to notify the other parent as soon as practicable of the emergency, and is to authorise all health professionals and hospitals involved in the treatment of Z to provide such information to the other parent as the practitioner or hospital can provide by law.
9. The Mother and the Father are each hereby authorised to speak to any health professional, including any specialist, or allied health professional or mental health clinician or therapist who is treating Z and to obtain a copy of any report which may be prepared.
10. The Mother shall sign the appropriate authority at Z’s school, and at any school which Z may attend in the future, to authorise the school to provide the Father with copies of all material provided to parents.
11. The Mother and the Father are each hereby authorised to:
(a) Speak to the principal, year co-ordinator, teacher, and any other relevant staff from the school which Z attends, and to receive copies of school reports, newsletters and other information, documents and correspondence usually sent to or made available to parents and
(b) To register for any on-line or web program hosted by the school for parents of students at the school.
12. Within 14 days of these orders the Mother shall arrange an appointment for Z to attend upon Ms E for the purposes of therapeutic counselling; such counselling shall continue for a period of 12 months from the date of these orders. The mother is to provide to Ms E a copy of these Reasons for Judgment.
Time
13. Z live with the Mother.
14. For the purpose of these Orders:
(a) A school year ending in an even numbered year is an 'even year' and a school year ending in an odd numbered year is an 'odd year'.
(b) For the purpose of these Orders, the last day of school term is defined as the last day that students are required to attend school and the first day of school term is defined as the first day that students are required to attend school. School holidays shall be deemed to commence no later than noon on the day after school ceases and to conclude no later than noon on the day before school is to recommence.
(c) To avoid doubt, in relation to trans-Tasman travel, Z’s time with his Father is to be deemed to have commenced upon Z leaving Australia and to conclude upon Z leaving New Zealand.
(d) During short term school holidays in terms 2 and 3, changeover shall occur at noon on the day in the middle of the first and last day of the relevant school holidays and in the event that there are two “middle days” changeover shall occur at noon on the first of those two middle days.
15. Z shall spend time with the Father as follows:
School term
(a) In the event that the Father is in Australia, for two periods, each of up to one week during weeks 3 and 6 of the school term, unless otherwise agreed in written communication as prescribed by these orders, provided that:
(i) The Father provides the Mother with 14 days’ written notice; and
(ii) The Father ensures that Z attends school and any other extracurricular activity he would ordinarily attend.
Short school holidays
(b) During term 1, term 2 and term 3 school holidays:
(i) For the whole of term 1 school holidays;
(ii) For one half of each of term 2 and term 3 school holidays being the first half of the school holiday periods in odd numbered years and the second half of school holiday periods in even numbered years.
With Z to travel to New Zealand at these times. In the event that the father chooses and gives the mother 14 days written notice, the father may spend time with Z in Australia during these periods and additionally after the expiration of a period of 12 months, elsewhere overseas in accordance with order 46.
Long term school holidays
(c) In the 2021/2022 long term school holidays and each odd numbered year thereafter, the first half of the long term school holidays, commencing at noon the day after the last day of school in term 4 until noon on 7 January.
(d) In the 2022/2023 long term school holidays and each even numbered year thereafter, the second half of the long term school holidays from noon on 7 January until noon the day before the commencement of school in term 1.
Mother’s day
16. Notwithstanding anything to the contrary in these orders, in the event that Z is not otherwise in her care, Z is to live with the Mother from 9.00am on Mother's Day until the commencement of school the following day or 9.00am in the event that the following day is a pupil free day.
17. The Father is to deliver Z to the Mother's home at the commencement of her time.
18. In the event that Z would ordinarily be in the care of the Father and is not attending school on the day immediately following Mother's Day, the Mother is to return Z to the Father's residence at which the father is staying in Australia at 9.00am.
19. The Father's time with Z is otherwise suspended from 9.00am on Mother's Day until 9.00am on the following day.
Father’s Day
20. In the event that Z is not otherwise in his care and the Father is in the Commonwealth of Australia, Z is to spend time with the Father from 9.00am on the day before Father's Day until the commencement of school the following day or the commencement of school on the Tuesday in the event that the Monday is a pupil free day.
21. The Mother is to deliver Z to the residence at which the Father is staying in Australia.
22. The Mother's time with Z is otherwise suspended from 9.00am on Father's Day until 9.00am on the following day.
Z’s birthday
23. In the event that Z is living with the Mother on his birthday and the Father is in the Commonwealth of Australia, Z will spend time with the Father from the conclusion of school on that day until 7.00pm, with the Father to collect Z from school at the start of this time and return Z to the home of the Mother at the conclusion of that time.
24. In the event that Z is spending time with the Father on his birthday, Z will spend time with the Mother from the conclusion of school on that day until 7.00pm, with the Mother to collect Z from school at the start of this time and to return Z to the residence at which the Father is staying at the conclusion of this time.
25. In the event that the birthday falls on a weekend and the Father is in the Commonwealth of Australia, Z will spend time with the Father from 5.00pm on the day prior until 12 noon on the birthday in even numbered years and from 12 noon until 6.00pm in odd numbered years and with the Mother from 12 noon until 6pm in even numbered years and from 5pm on the day prior until 12 noon on the birthday in odd numbered years.
Changeovers
26. If Z is to travel to New Zealand to spend time with the Father, the Mother shall facilitate Z’s travel to New Zealand with the Father’s time to commence upon the commencement of Z’s flight out of Australia and the Father is to collect Z from City M International Airport or such other airport as may be agreed in writing by the Mother and the Father, communicating as set out in these orders.
27. If Z has travelled to New Zealand to spend time with the Father, the Father shall facilitate Z’s return travel from New Zealand to Sydney International Airport at the end of the time, with the conclusion of time to be when Z’s airflight leaves New Zealand.
28. If the Father has travelled to Australia to spend additional time with Z, changeover shall take place at the front door of the Mother’s residence (unless there is a specific order that the Mother deliver Z to the residence at which the Father is staying in Australia).
Conditions relation to Z spending time with the Father
29. The Father be and is hereby restrained:
(a) From keeping a gun at any premises where he spends time with Z, or
(b) From applying for a gun licence in New Zealand or Australia without first providing the Mother with notice in writing of his intention to apply for such licence, written notice to be given to the Mother not less than 28 days before lodging the application with the relevant authority.
30. Within 7 days of these orders, the Father shall sign an irrevocable authority to Ms F, psychologist and Ms G, family therapist, and within 7 days of engaging them, any new psychologist or family therapist, authorising the psychologist or therapist to advise the Mother forthwith in the event of any deterioration in the Father’s mental health or in the event that the Father becomes suicidal and to then forthwith provide those authorities to the Mother.
31. For the period of 12 months from the date of these orders:
(a) Upon both Z’s arrival to and departure from New Zealand, the Father shall be accompanied by at least one of the following persons:
(i) Ms H James (the paternal grandmother)
(ii) Ms J James (the paternal aunty)
(iii) Ms K James (the paternal aunty)
And at least one of these persons be present (face to face with Z) for the first 24 hours and thereafter some time each second day Z is with his Father
(b) During any period Z is to spend time with his Father in Australia when the Father comes to collect Z from the Mother:
(i) If the Mother desires to do so, she may engage the Father in a conversation about his wellbeing. The Father is to participate in that conversation.
(ii) If arising from the Father’s presentation the Mother forms a genuine belief that the Father may present a present serious risk to Z, she is not required to make Z available to spend time with the Father.
(iii) For a period of 12 months, and in the event that the Father chooses to spend time with Z in Australia during school holidays, the Mother shall be at liberty to employ a professional supervision service or arrange for an adult approved by her to drop in on Z each second day of the holidays to check on Z’s welfare and the Father’s wellbeing.
Communication
32. Each parent is to do all things necessary to ensure that the other parent is kept informed at all times, and in writing, of their current residential address and contact telephone number (which can be used by them in emergencies).
33. The Mother shall facilitate Z speaking to the Father by telephone, skype or facetime each Tuesday, Thursday and Sunday with the communication to take place between 6:30 pm and 7:00 pm Sydney time and if not contacted by Z, the Father may initiate communication with Z at these times.
34. The Father shall initiate and pay for the communication with Z referred to in these orders.
35. Each parent is to ensure that, in the event that Z is in their care, they will facilitate Z speaking with the other parent upon Z's request, nor will they prevent Z from otherwise communicating with the other parent.
36. All communication between the parents is to be by way of the parenting application "Our Family Wizard" or similar parenting application if “Our Family Wizard” is discontinued, to convey all parenting information between them including any communication required by these Orders.
Interstate Travel
37. Z is permitted to travel interstate with either parent during such times as Z is living with them or spending time with provided that the parent who intends to travel gives 14 days' notice in writing of this intention to the other parent, in addition to the following information:
(a) An itinerary which includes the dates and times of travel, and flight numbers if applicable;
(b) The name and address of any accommodation at which Z will be staying; and
(c) Contact details for Z while they are travelling.
Passports
38. Pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the Mother is to have sole parental responsibility to apply for, or renew an Australian Passport or travel document for Z namely Z, born in 2012, such passport shall be issued to the Mother without the consent of the Father and she is thereafter to retain possession of that passport and may release it to the Father for the purposes of any proposed international travel as provided by these orders.
39. Within 28 days of the date of these orders, the Mother is to collect Z’s New Zealand passport from the Sydney Registry of the Family Court of Australia and she is thereafter to retain possession of that passport, and may release it to the Father for the purposes of any proposed International Travel as provided by these orders.
Z’s flights between Australia and New Zealand
40. When Z is to spend time with the Father in New Zealand pursuant to these orders, the Father shall arrange for all flights for Z to travel from Sydney International Airport to New Zealand and for Z to travel from New Zealand to Sydney International Airport. The father is to arrange a flight which is as near as practicable after the commencement time of Z’s time with him and to conclude as near as practicable before the conclusion of Z’s time with his father.
41. The Father shall provide a copy of Z’s flight details to the Mother not less than 28 days prior to the date of intended travel.
42. The mother shall not be required to put Z on the flight from Sydney International Airport to New Zealand at the commencement of Z’s time with the father unless the mother has received from the father a copy of Z’s flight details for the return flight from New Zealand to Sydney International Airport and evidence that the cost of the flight has been paid in full.
43. The Mother is at liberty to accompany Z to and from New Zealand at her own expense but otherwise Z shall be permitted to travel as an unaccompanied minor.
44. The parent with whom Z is not living during that time will not seek an order for immediate return of Z in the event that the return of the travelling parent is being held up for a reasonable period by unforeseen circumstances such as airline strikes or adverse weather conditions beyond the travelling parent's control.
45. Costs of travel will be structured in the following way:
(a) The father pay all of Z’s costs of travel for 12 months and thereafter those costs are to be shared equally;
(b) The father pay all of his costs of travel;
(c) The mother pay all of the costs of her travel.
Other international travel
46. Apart from travel between Australia and New Zealand, after a period of 12 months, the parties shall be permitted to take Z out of the Commonwealth of Australia for holidays and for other short periods of time during such times as Z is living or spend time with them provided:
(a) The travelling parent will give the other parent as much written notice as possible of their intention to take Z out of Australia and in any event will give that parent no less than 28 days written notice of such intention.
(b) The travelling parent will furnish to the other an accurate itinerary to include the departure date and return date, the country or countries Z and the travelling parent will be travelling to, the approximate dates on which they will arrive and depart each country and a telephone number and address which they can be contacted in each country.
(c) Upon the Mother receiving written confirmation of the Father’s intention to take Z out of the Commonwealth of Australia in compliance with this order and upon the Father providing the itinerary, the Mother is to provide one of Z’s passports to the Father only for the purposes of the overseas holiday particularised in the itinerary.
(d) The parent with whom Z is not living during that time will not seek an Order for the immediate return of Z in the event that the return of the travelling parent is being held up for a reasonable period by unforeseen circumstances such as airline strikes or adverse weather conditions beyond the travelling parent's control.
(e) Z is not permitted to travel to a country that is a not a member of the Hague Convention save for transit.
(f) Z shall not travel to a country that the Australian Government Department of Foreign Affairs and Trade (or any subsequent reincarnation of that Department) identities as a country with the travel advice to the following effect:
(i) "Do not travel";
(ii) "Reconsider your need to travel "; or
(iii) "Conditions can change suddenly".
or any advices in similar terms.
(g) Within seven days of the date upon which the travelling party returns to Australia the passport which the Mother has provided to the Father pursuant to this order, be returned by the Father to the Mother and she shall hereafter retain possession of Z's passports.
Restraints
47. Each parent be and is hereby restrained from denigrating any member of the other parent’s family or household or speaking in a derogatory, critical, or insulting way about any member of the other parent’s family or household in the presence or hearing of Z.
48. Each parent shall use their best endeavours to ensure that no third party denigrates the other parent or speaks in a derogatory, critical or insulting way about the other parent or any member of the other parent’s family or household in the presence or hearing of Z and in the event that such conduct continues to occur, the parent shall immediately remove Z to a place where he cannot hear the conversation.
49. Each parent be and is hereby restrained from discussing these or any other legal proceedings with Z or showing him any document relating to any of these proceedings.
Costs
50. Within 3 months from the date of these orders, the parties shall make the following payments to Legal Aid NSW on account of the costs of the Independent Children’s Lawyer herein:
(a) As to the Mother, the sum of $6,823.00;
(b) As to the Father, the sum of $7,712.90.
51. Within 3 months, the Father pay to Legal Aid NSW the sum of $2,145.00 being one-half of the fee for Dr L to attend Court for the hearing in this matter, noting that the Mother has already paid the sum of $2,860.00 to Legal Aid NSW on account of these fees and will be claiming a credit from Legal Aid NSW relevant to her obligations in the preceding order.
52. Within 3 months the Father pay the Mother $5,750 being the amount that Mother paid for the Father’s share of the single expert report prepared by Dr L.
COVID-19 and Liberty to relist
53. Each parent is to do all things and sign all necessary documents to seek any required approval or exemption from the appropriate authority or authorities to enable Z to travel to New Zealand in accordance with these orders.
54. If there are any difficulties in respect of the implementation of the orders arising as a result of border problems with New Zealand as a result of the COVID-19 pandemic either party be at liberty to make an application under the Joint Practice Direction 1 of 2021 – the COVID-19 List.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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