Brown & Crawford
[2009] FamCA 96
•19 February 2009
FAMILY COURT OF AUSTRALIA
| BROWN & CRAWFORD | [2009] FamCA 96 |
| FAMILY LAW - CHILDREN - Best interests of the child - Relocation - With whom a child lives - With whom a child spends time - Supervised contact FAMILY LAW - POWERS OF THE FAMILY COURT - Inherent power to make orders regulating Court’s own process - Restrictions on mother bringing further proceedings |
| Family Law Act 1975 (Cth) |
| AIF v AMS (1999) 199 CLR 160 |
| APPLICANT: | Mr Brown |
| RESPONDENT: | Ms Crawford |
| INDEPENDENT CHILDREN’S LAWYER: | Gary Couper Solicitor |
| FILE NUMBER: | BRC | 5081 | of | 2008 |
| DATE DELIVERED: | 19 February 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 9-10 February 2009 |
REPRESENTATION
| APPLICANT FATHER: | Appearing in person |
| RESPONDENT MOTHER: | Appearing in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Carmody |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Gary Couper Solicitor Brisbane |
Orders
All previous parenting orders be discharged.
The Application in a Case filed by the mother on 29 January 2009 be dismissed.
The Independent Children’s Lawyer be discharged upon the carrying out of the requirements imposed by these orders, or on a date three months from the date of these orders, whichever is the sooner.
Parental responsibility
Save as otherwise provided in these orders in respect of the child’s name, the father shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the father shall, prior to making the sole ultimate decision about any such issue:
(a)Use his best endeavours to advise the mother in writing of the decision intended to be made;
(b) Seek the mother’s written response in relation thereto;
(c)Consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The parties shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary to:
(a) Keep the other informed of their current residential address;
(b)Keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists and extra-curricular activities which the child attends or undertakes as the case may be;
(c)Immediately advise the other in the event that the child sustains any serious injury or suffers any serious illness;
(d)Authorise any person, institution or body referred to in the previous sub-paragraph to provide to the other parent any and all such information in respect of the treatment of the child, or his activities as the case may be, as the other parent might reasonably require;
(e)Have the child’s school/s provide to the other parent a copy of the child’s report cards, together with any other written report issued by the school in respect of the child;
(f)Authorise any school or educational institution, teacher, tutor or other educational professional to provide to the other parent any and all such information in respect of the progress of the child, including, but not limited to, his social, sporting and extra-curricular activities as the other parent might reasonably require.
In order to give better effect to these Orders, a copy of these orders and the Court’s reasons for judgment be approved for publication to each of the persons or institutions referred to in sub-paragraph (b) of the previous order, and the contact centres hereafter referred to, but the publication of no other “account of the proceedings” within the meaning of s 121 of the Act is approved.
The Independent Children’s Lawyer shall request from the mother or father, as the case may be, a list of such persons or institutions referred to in Order (5) currently attended by the child and each party shall forthwith comply with any such request and, thereafter, the Independent Children’s Lawyer shall provide each such person or institution with a copy of these orders and the Court’s reasons.
As and from the date of discharge of the appointment of the Independent Children’s Lawyer in accordance with these orders each of the parties shall do all such things as are necessary to give effect to Order (5) from time to time.
Live with and Time
The child shall live with the father including upon the relocation of the father to Melbourne.
The child shall spend time with the mother at all such times as might be agreed in writing but otherwise as provided for in the succeeding paragraphs of these Orders:
A. UPON THE RELOCATION OF THE FATHER TO MELBOURNE:
(a)The mother’s time with the child be supervised at a contact centre as hereafter provided;
(b)The mother spend time with the child on three week-ends per year provided that the mother first notifies the father in writing (“the written notice”) not less than 28 days in advance of the dates on which she intends to spend time with the child and shall include in the written notice, the times at which she has arranged with the contact centre for time to commence and conclude during each such weekend;
(c)The said time be for such maximum time as the contact centre can accommodate during each such weekend;
(d)The father shall forthwith advise the Independent Children’s Lawyer of his intended address in Melbourne and any information in his possession as to contact centres in the proximity of that address;
(e)Upon receipt of the written notice in respect of the first intended period of time:
(i)the father shall further take all such steps as might be necessary to consult with the Independent Children’s Lawyer and, in consultation with him, agree upon an appropriate contact centre in Melbourne for the purposes of these Orders; and
(ii)the parties shall each do all such things, sign all such documents and the mother shall pay all such fees as are reasonably necessary to register the parties and child at the Contact Centre referred to in the previous sub-paragraph of these Orders;
(f)Upon receipt of each written notice in respect of each period of time provided for in these orders, the father will provide the mother with a return airline ticket to be delivered to the mother’s post office box address no less than 14 days prior to the mother’s departure.
B.IN THE EVENT THAT THE FATHER AND CHILD RESIDE IN SOUTH-EAST QUEENSLAND
The father shall forthwith advise the mother in writing of his intention to take up residence in South-East Queensland, the intended date of that occurrence and the address at which he and the child will be residing.
Upon the father and child commencing to reside in South-East Queensland, the mother shall spend time with the child in accordance with the succeeding provision of these orders.
The mother shall, within 14 days of the father taking up residence, notify the father in writing, at the address contemplated by Order (11), of her intention to exercise time in accordance with the succeeding provisions of these Orders.
Provided that the mother gives the written notice referred to in the previous order:
(a)time with the child shall take place supervised at a contact centre to be agreed upon between the parties in writing, and, in default of agreement, at the N Contact Centre;
(b)the parties shall each do all such things, sign all such documents and the mother shall pay all such fees as are reasonably necessary to register the parties and child at the Contact Centre referred to in the previous sub-paragraph of these Orders;
(c)time shall occur each alternate weekend, commencing on the first occasion upon which the contact centre can accommodate time and be for such maximum time as the contact centre can accommodate during each such weekend.
Communication - Mail and Email
The mother be at liberty to communicate with the child by mail and e-mail at all such reasonable times as she might wish.
The father shall retain each written communication and a hard copy of each e-mail communication until the child attains the age of 18, including any considered inappropriate as referred to in the succeeding orders.
The father is at liberty to read all such communications and, should he consider them inappropriate in the child’s best interests, having first considered the child’s age and stage of maturity and development, he be at liberty to not pass same on to the child provided he (as soon as reasonably possible thereafter) gives written notice to that effect to the mother.
In the case of e-mail communication, in the event that there are two consecutive communications considered inappropriate as referred to in the previous Order, the father be at liberty to take steps to prevent further e-mail communications provided he first gives notice to that effect to the mother and encloses with that written notice a copy of each of the two e-mails considered by him to be inappropriate.
The Child’s Name
UPON NOTING THAT the child is referred to by different names by each of his parents when in their respective care, the application by the father for orders in respect of the child’s name is dismissed.
The father is at liberty to publish these Orders, and that part of the Reasons for Judgment given this day relating to the child’s name, to the child’s school, any banking or financial institution, the Australian Passports Office and any similar body in circumstances where such action is required to obviate or reduce any confusion about the child’s name.
Further Proceedings – Steps to be Taken
Until further order, the mother must not, without leave of the court, institute in the Court any proceedings for any parenting orders in respect of the child.
Any such application for leave to institute proceedings for any such parenting orders will, in the first instance, be first listed for hearing before a Judge in chambers and, if circumstances permit, by Justice Murphy.
Unless otherwise ordered by the court, any such application for leave shall not be served on the father or any other party.
In circumstances where the mother makes application for parenting orders to the Federal Magistrates Court, she shall attach to such application a copy of these orders.
Further Injunctions
Save as earlier provided in these orders, the applications (made orally) by the father for injunctions are dismissed.
IT IS FURTHER ORDERED THAT
Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Pursuant to s 65DA(2) and s 62B, 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 under the pseudonym Brown & Crawford is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 5081 of 2008
| MR BROWN |
Applicant Father
And
| MS CRAWFORD |
Respondent Mother
REASONS FOR JUDGMENT
In about September 2005, J, born in June, 2000, who is the child the subject of the current parenting proceedings, came into his father’s care as a result of the unilateral actions of the father. The mother refers to this incident as “the abduction”.
Subsequent contested proceedings, resulted in orders by (then) Senior Registrar Spelleken and, subsequently, Carmody J. Each were to the effect that the child live with his father and have supervised time with his mother.
The fact that the child had, until that time, lived with, and been predominantly cared for, by his mother for over two years since the parties separated in 2003, gives reason to suppose that matters were thought significantly relevant to the child’s best interests by those earlier courts to bring about that change.
The mother maintained then, and continues to maintain now, that the decisions just referred to were based on lies told by the father and were wrong. The mother unsuccessfully reviewed the (interim) decision of Senior Registrar Spelleken. She did not appeal the subsequent (final) decision of Carmody J, rendered after a trial, which was made on 3 September, 2007.
The mother’s implacable belief of the wrongs of those decisions, and the wrongs in the court process, and the reports by experts who have provided reports within it, inform every aspect of her case in these proceedings and form an important part of the background in which the current decision is called for.
That belief system apparently informs an attitude of the mother, expressed vehemently during her cross-examination of the father and his wife. That attitude forms, in my view, another important background consideration in this current dispute. The mother, who represented herself, said to the father’s wife that she “just wanted her to know” that:
“However long it takes, [the father’s] attention will be taken up with having to go to court because I am not stopping until [the child] is reinstated back to his home”.
Similar comments were made by the mother to the father during his cross-examination. For example:
“I will continue on with this case even if [the court] finalises it today”;
“There’ll be another application … I’m going to continue until justice is done.”
The instant proceedings arise by reason of a proposed moved by the father and his family (including the child) to Melbourne.
Preliminary Matters
Change of Circumstances
The orders currently applicable were made by Carmody J after a trial in September, 2007.
There is little doubt that, based on both her material and what she said during the trial and her submissions, the mother seeks to either re-agitate the issues that were determined in the (respectively, interim and final) proceedings before Spelleken SR and Carmody J, or to point to error in the decisions there arrived at.
Those earlier proceedings were premised on the father living with J on the Gold Coast with his wife and child, and on the mother also residing in that area and with the consequent capacity for the mother to exercise supervised time at the N Contact Centre.
The proposed move to Melbourne, with all that potentially implies in terms of parenting orders, constitutes, in my view, a significant change of circumstances to those which applied at the time of Carmody J’s judgment. No party submitted to the contrary. The current proceedings, then, proceed afresh as parenting proceedings, to be determined on the circumstances now applying.
Self Representation
Each of the parties is self-represented. I am mindful that self-representation (and parties preparing their own material) may create for them some disadvantages. I have sought to be particularly careful when assessing the parties’ evidence (and submissions) to bear that in mind. (I have in mind, for example what the High Court said in Neil v Nott (1994) 68 ALJR 509 at 510).
Here, both the father and the ICL took the view that the court would not be assisted by cross-examining the mother’s witnesses. The father did not cross-examine the mother. The mother cross-examined each of the father, his wife, Dr M and Mr F.
It can, I think, be fairly said that, to use the words of the High Court in Neil v Nott, above, the mother’s case was, to a certain extent, “… obfuscated by [her] own advocacy…”.
A corollary of the concern about self-representation just expressed is that it can also bring with it the opportunity for a trial court to see and hear things from a party that otherwise might be shrouded in the expertise of their representation. Mr Justice Wilson (UK) said, in his Atkin Lecture in 2002 entitled, “The Misnomer of Family Law”):
“… I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent; let us say for convenience, a father. One sees him in action throughout the case, not just when produced by the advocate for his performance in the witness box. One sees him when he is tired and under stress … one sees him cross-examine the mother … [T]he father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example, whether handovers of the child between them would proceed sensibly, and to study their language including of the body, towards each other in that unenviable situation.”
Here, I consider that the mother’s self-representation provided an opportunity (albeit a relatively limited opportunity in an unusual environment) to “discern the quality” of her capacity to parent, including her attitude to the father, his wife and the level of respect she had for the father as a co-parent of their child. So, too, with the father’s self-representation.
I record that I am also acutely aware that, in cases such as the present, the father and the ICL ultimately seek orders which, in substantive content, are similar. The mother remarked on this in her address: “The orders sought by the ICL have always been the same as the father”. Further, as remarked upon above, their approaches to the case had similarities.
In those circumstances, the “spotlight” of the hearing can shine brighter on an unrepresented party in the mother’s position. Because the spotlight of enquiry shines brighter, any flaws tend to be all the more vividly exposed.
Speaking generally, the experts whose evidence is before me express observations of the parties which accord broadly with my own observations of the parties in the witness box and the impressions gained from reading their affidavit evidence.
The Use of Reasons and Evidence from Previous Proceedings
At a “continuation day” of this hearing, held on 18 December, 2008, I spent some considerable time attempting to discern the evidence relied upon by the self represented parties and, thereafter, specifying in my orders the evidence to be relied upon by each party. (See s 69ZQ; s 69ZX).
Consistent with her overall position, subsequently expressed to each of the family consultant, Mr F and the reporting psychiatrist, Dr M - and also to the court - the mother indicated that she sought to rely upon the Reasons of Spelleken SR (as the Federal Magistrate then was) and Carmody J. Her purpose was to indicate their wrongs. A similar purpose applied to the evidence from a reporting social worker in those proceedings, Ms O.
Section 69ZX(3) of the Family Law Act 1975 (Cth) (“The Act”) provides:
“The Court may, in child-related proceedings:
(a)receive into evidence the transcript of evidence in any other proceedings before:
(I) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).”
The Explanatory Memorandum to the Reform Act, which introduced the sections, provides:-
“29. Subsection 69ZX(3) inserts a modified version of section 86 of the Native Title Act 1993. It provides that the court may, in child-related proceedings, receive into evidence the transcript of evidence in any other proceedings before a court or tribunal and draw any conclusions of fact from the transcript that it thinks proper. The court may also adopt any recommendation, finding, decision or judgment of any court or tribunal.
30. This amendment implements recommendation 5 of the Family Law Council’s December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. The Report found that such a provision could provide a court with the flexibility to draw on relevant evidence adduced in other proceedings in other courts to inform decision-making in the best interests of the child pursuant to subsection 68F(2). It suggested that, in the case of an Aboriginal or Torres Strait Island child, such an approach would assist a court in informing itself of the content of the relevant kinship obligations and child-rearing practices wherever such reliable information exists. In this regard, the provision is relevant to new section 61F (inserted by item 14 in Schedule 1) which requires the court to have regard to the kinship obligations and child-rearing practices that are relevant to an Aboriginal or Torres Strait Islander child.
31. This provision does not apply only to proceedings concerning an Aboriginal or Torres Strait Islander child. It applies to all child-related proceedings. In this respect, the provision implements recommendation 48 of the LACA Report. The Committee was of the view that extending the provision to all children would be helpful and may assist in addressing issues surrounding claims of family violence and abuse. The note to subsection 69ZX(3) clarifies that the subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.”
Section 69ZX(3) is contained within Division 12A of the Act, a Division which broadens very considerably the capacity of the court to receive evidence in child-related proceedings that may otherwise be inadmissible. (See eg, s 69ZN(7); s 69ZT(1) and s 69ZX itself).
Subparagraph (a) of s 69ZX(3) appears on its face unrestrained in terms of the conclusions of fact that may be drawn from transcripts in other proceedings. So, too, the permission afforded by subparagraph (b) refers to the adoption of “any” of the named matters including, relevant to this case, any “finding” or “judgment” of “any court”. Again, the language is permissive and unrestrained.
That a court should adopt, or use as evidence, findings by other judges about matters contentious before those other judges and, in one form or another, contentious in fresh proceedings before the court, is somewhat “counterintuitive”- at least to me.
Nevertheless, it seems to be plain that the section specifically contemplates the court doing so. And, the mother at least, seeks to put those matters squarely before me as being relevant to the issues to be determined here.
Moreover, the section can, in my view, be seen to have particular utility in a case such as the present where historical issues are mirrored in current issues before the court and where those issues are said to be directly relevant to the best interests of children – the specific focus of Division 12A of the Act.
Further, I consider that my understanding of J’s predicament is assisted by those earlier judgments and they are helpful in putting the evidence – and particularly the expert evidence - before me into a proper context.
My intuitive discomfort might be more acute but for the fact that the earlier findings upon which I intend to place reliance are consistent with evidence before me, my own assessment of the parties and their evidence, and findings which, in my judgment, result from that evidence.
The Proceedings and the Proposals of the Parties
These proceedings arise because of the father’s desire to relocate with J, his wife and their two-year-old child to Melbourne.
The father deposes that he has the opportunity to be the manager of a family business there which will involve a significant increase in salary and other financial benefits and, he hopes, the opportunity for the business to expand to, eventually, open a branch office in Queensland.
His wife is less than enthusiastic about the move; for her it means a move away from her family to a new State. The father, on the other hand will be closer to J’s extended family on his side. The father deposes to the move being for two years. He hopes to return to Queensland after that time, but deposes to the possibility of that time frame being longer.
By reasons of matters that have arisen in the last twelve months or so, (which, the mother is at pains to point out, occur through no “fault” of hers) the father’s proposal, although involving a significant geographical separation of J’s parents, does not effect a significant alteration to the time which the mother has recently been spending with the child.
The father’s formal proposal is contained in Exhibit F1:
“If relocation to Melbourne is granted I propose:
i. If the mother also relocates, contact to take place on a supervised basis at an appropriate contact centre in Melbourne
ii. The mother to have telephone contact each Wednesday night at 6.00pm with calls to be monitored by the father.
If the mother does not relocate:iii.If the mother does not relocate, she is to have telephone contact each Wednesday night at 6.00pm with calls monitored by the father
iv.The father to ensure [J] sends mail each fortnight;
v.[J] be made available for contact at a contact centre in Queensland twice each year provided it is confirmed with the father by the contact centre. The mother to cover the travel costs of [the child].
vi.The father registers [J] at an appropriate contact centre in Melbourne;
vii.[J] spends time with his mother at a contact centre in Melbourne, subject to their availability upon the mother giving three weeks notice of any intention to attend the contact centre.
If relocation is not granted:
viii.The mother spend time with [J] at a contact centre in Queensland
ix.The mother have telephone contact each Wednesday night at 6.00pm with calls to be monitored by the father”.
The father, who appears for himself, effectively made application orally through the course of his address for an order pursuant to s 118(1)(c). That application arises, essentially, as the result of the comments made by the mother during the cross examination of both he and his wife as earlier referred to. That order is supported by the Independent Children’s Lawyer.
The father also sought orders by way of oral application in his address to the intent that the injunctions be granted restraining the mother from coming within a specified distance of his residence and the school attended by J. He sought orders that would have the effect of keeping his (and J’s) address and school confidential and an injunction restraining the mother from “absconding with the child”.
The father was asked by counsel for the Independent Children’s Lawyer about funding trips by the mother to Melbourne. He indicated an unwillingness to do so, based essentially, as I gathered it, on the fact that expenses would be incurred by the family in Melbourne and that the mother pays no child support.
The proposal contained within the mother’s Response to Initiating Application filed 31 July 2008 is:-
a)“That all prior orders be discharged;
b)That the residence, care and responsibility (parenting) for [the child J] be reinstated back to the mother, via immediate recovery;
c)That the child [J Crawford] have full right to retain this, his birth name;
d)That the actions of [the father] since 11 September 2005 receive justice by this Honourable Court which despite our experience so far, still stands on truth and justice, and the protection of the innocent and vulnerable”.
That same document sought (as an interim order) an order that:-
“The child [J] to be immediately returned home, back to the care and nurture of his mother, so he can receive the needed comfort and care, and the restoration of all that was so precious to him.”
In addition, the mother filed an Application in a Case on 29 January 2009 seeking the following orders:
1.“That all prior orders be discharged;
2.That the child [J] born […] June 2000 be returned through immediate Recovery to residence and care of the mother;
3.That pursuant to Section 67Q of the Family Law Act a Recovery Order issue for the child [J] directed to the Marshall of the Family Court of Australia and to all Officers of the Australian Federal Police Forces of all the State and Territories of Australia and to every person from time to time holding or acting in an office of the Child Recovery Office as follows:-
a) Authorizing or directing a person or persons, which such assistance as he or she requires or they require, and if necessary by force to stop and search any vehicle, vessel or aircraft, and to enter and search such premises or places for the purpose of finding the child;
b) Authorising or directing a person or persons, with such assistance as he or she require or they require, and if necessary by force, to recover the child;
c) Authorising and directing a person to whom the child is returned, or who recovers to the child, to deliver the child to:
i.the mother
d) Prohibiting persons from again removing or taking possession of the child.
4.That the child’s identity and his right to his birth name to be respected and protected;
5.That all and every record of application, and enrolment relating to this child since August 2004, performed by, applied for, lodged or requested (orally and written) by [the father], [C], or [Ms L] be handed to the mother with a copy given to the Brisbane Registry of this Court. This includes all and every document, card, paper, record, application, and enrolment pertaining to this child, held by the afore-named persons, by State and Commonwealth departments, organizations, groups, societies, schools, medical and psychological areas”.
There was some confusion about this. The mother thought she had filed two such applications. Only one appears on the file. It is plain, though, that each application (signed on 2 January 2009 and 28 January 2009 respectively) seeks precisely the same orders.
There is, it should be pointed out, no order requiring J to either live with, or spend time with the mother, save for supervised time at the N Contact Centre. The undisputed evidence is that, for whatever reason and by whatever confluence of circumstances, the mother has not exercised time at that contact centre (or otherwise) for about 12 months.
I considered that the practical effect of this application was to seek an order for the return of J to her care (and for that to occur urgently), and indicated that to the mother at the hearing. In discussions with the mother at the outset of the hearing, I understood the mother to be in agreement that I should, as it were, “subsume” that application into the application for parenting orders otherwise contained in her response.
Later in the hearing, the mother raised this matter again and, on this occasion did not appear to be in agreement with that course of action. Accordingly, having heard all of the evidence needed in respect of it, I gave brief reasons dismissing the application in a case. Those reasons essentially concluded that the application was incompetent.
The Independent Children’s Lawyer contended for specific orders at the conclusion of the hearing. For ease of identification, those proposed Minutes were marked as Exhibit “A”.
In broad terms, the ICL supports the father moving to Melbourne with J and the mother spending time with him on a supervised basis at a contact centre in Melbourne (having first given notice to the father). Further, the ICL contends that the father should fund the mother’s flight so as to facilitate three of those times in Melbourne and fund the child’s flight so as to facilitate three such times at the Gold Coast.
The ICL does not support the father’s applications for injunction and anonymity earlier referred to.
Issues and Considerations
It is necessary to record that I am cognisant of the requirements of the Act in arriving at a decision about a child’s best interests.
In doing so, I also acknowledge that this case is of a type often described as a “relocation case” – that is, a case where one parent seeks to reside with a child at a place separated by such geographic separation so as to bring into consideration significant issues in relation to the amount of time that the other parent might spend with the child if that parent does not also relocate.
“Relocation Cases”
As is well known, so-called “relocation cases” have been the subject of much judicial and extra-judicial consideration.
I have, on an earlier occasion, expressed my views about the law applicable in such cases as set out in the relevant sections of the Act and the decided cases, including those which bind me. Counsel for the ICL, Ms Carmody, referred to that decision in her submissions.
I propose to repeat the views there expressed in the current context (where each of the parents represent themselves) so that my understanding of the principles which bind me is clear on the face of these reasons.
The term “relocation case” is a convenient descriptor in wide use for cases where the living arrangements for a child proposed by one parent involves a significant geographic separation from the other parent. As a description, the term is convenient.
However, there are, in truth, no sub-categories of parenting case; each such case requires a determination of the child’s best interests specific to that child and the specific circumstances of the proposed parenting by his or her parents.
That in turn requires interpreting the Act (specifically Part VII of the Act) which confers the power to make parenting orders and dictates the process by which any such decision is arrived at. The task of discerning the proper meaning of the legislation is not an exercise in semantics or sophistry. The nature of what the Act requires of a court is central to the court’s role and power.
The effect of the 2006 amendments in cases such as the present has, to one extent or another, been the subject of judicial consideration, in particular, recently by the Full Court of this Court. (Taylor & Barker [2007] Fam CA 1246; Sampson & Hartnett [2007] FamCA 1365; Goldrick & Goldrick [2007] FamCA 1260). In Goode & Goode [2006] FLC 93-286, the Full Court examined the amendments more generally, albeit in the context of interim orders and not in a “relocation case”.
Two clear tenets of legislative intent (relevantly) emerge. First, it is intended that both parents of children should have an ongoing role in the co-parenting, or co-nurturing, of their children that is of value to the children. Secondly, that tenet, and the interference by a court in co-nurturing by parents, should, in all cases, be governed by a determination of best interests specific to that child and that child’s particular circumstances.
The Act makes it abundantly clear – and reminds the court numerous times in different places – that the essential exercise in making parenting orders is to arrive at ultimate findings directed to the specific children’s best interests. Findings as to best interests underpin each of the specific matters to which the court is directed by the Act. (See, eg: s 60B(1)(a); s 60CA; s 61DA(4); ss 65DAA (1)(a); 65DAA(2)(c) and Note 1 to each of the latter two sections). And, by way of corollary, the assessment of best interests is to be conducted within the statutory objective of maximizing parental involvement consistent with that assessment.
Whilst not constituting a separate category of parenting case, those principles can be seen to be thrown into sharp focus where one party would have a child live with him or her and the geographic separation of parents means that significant periods of time will separate face to face co-parenting opportunities. But, consistent with long-standing authority, including from the High Court (see the cases discussed in Taylor & Barker), and, in my view, consistent with a reading of Part VII as a whole, it seems to me that the issue of relocation ought not be determined separately from other issues relevant to a determination of best interests in a parenting case.
As the heading to s 60CC indicates, the section determines how a court is to determine what is in a child’s best interests. The mandatory considerations (s 60CC) are, like their predecessors (s 68F(2)), not objective standards. (See, eg. Secretary, Department of Health and Community Services v. JMB & SMB (1992) 175 CLR 218 at 270-2). The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted. That it remains a broad enquiry is evident from the section itself (s 60CC(3)(m)).
Ascertaining best interests by reference to those mandatory signposts must embrace the fact that: “[i]t is a mistake to think that there is always one right answer to the question of what the best interests of a child require … [b]est interests are values not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).
It is perfectly consistent with a parent’s rights in this democracy that they have not only what has been referred to as a “freedom to move”, but also a freedom to make choices about how they should re-structure their lives upon the breakdown of a relationship with their fellow parent. It follows, consistent with those rights, that one parent ought not have a “veto” over the rights of the other parent by reason of the circumstance that they have children together, and once had a relationship that produced those children.
Yet, parenthood not only brings with it a miscellany of rights, duties, responsibilities and difficulties; it also brings with it, for loving and caring parents – and for the children - great joy and satisfaction from the regular involvement in their children’s trials and tribulations, successes and failures. It is perfectly consistent with a loving parent’s rights in this democracy that they should seek to have the, as it were, freedom, to have that regular involvement and to experience those joys and dramas as their children grow day by day and year by year. It also follows, consistent with those rights, that, equally, the other parent ought not have a “veto” over those rights.
When parents can’t agree, the court’s assessment of best interests is the measure of the extent to which those legitimate rights and freedoms must give way. (See AIF v AMS (1999) 24 FamLR 756; U v U (2002) 211 CLR 238).
A “relocation case” takes its place as, and falls to be determined as, a parenting case in which the fact-finding (and, perhaps, value-finding) exercise leads, as in any other parenting case, to a conclusion about these specific children’s best interests. The enquiry remains the same as in any other parenting case (what orders are in the best interests of the children) but involves a specific, and acute, issue.
The inquiry as to best interests in a “relocation case”, as in all parenting cases, is the starting point. The determination of orders best meeting the children’s best interests in a “relocation case” is, as in all parenting cases, also the end point.
“Best interests” – and, thus, the findings of fact (and values) which underpin it - is also a servant to many masters within Part VII. The Act prescribes but one method for determining best interests and that is the making of findings in respect of the matters specified in s 60CC. Those findings, then, find their way into a number of different aspects of the decision in respect of parenting orders including, for example, parental responsibility and quantities of time.
Importantly, the reference in earlier authorities to ascertaining and assessing the parties’ “proposals” is not to be seen as a reference to some legal term of art or arcane legal requirement. The parties’ proposals are – no more and no less – the manifestation of these particular parents expressing, in practical terms, their “solution”, or their best attempts at resolving, the dilemma posed by their legitimate desires, rights and freedoms.
In other words, the parties’ proposals (or some alternative proposal which the court considers to be more appropriate) are integral to, and form part of the court’s findings as to best interests.
Summary of Applicable Principles in “Relocation Cases”
Consistent with my understanding of the authorities to which I have earlier referred, including those post-Reform Act Full Court decisions specifically addressing “relocation cases”, and by reason of my views just discussed (which I consider to be consistent with those authorities), I proceed to determine this matter applying the following principles:
·A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances;
·A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time;
·Relocation cases, like all parenting cases, involve a determination of best interests as the measure by which legitimate rights and freedoms of the parties must give way to the rights and interests of the children;
·In that way, best interests is the paramount, but not the sole, consideration whatever be the nature of the order informed by findings as to best interests. That includes orders relating to parental responsibility and the rebuttal of the presumption in favour of equal shared parental responsibility in particular;
·All parenting cases require precise proposals by the parties (including, if thought appropriate, alternative proposals). The proposals are (or should be) the expression of each party’s assessment of their children’s best interests. “Relocation cases” are no different;
·The issue of relocation (and, necessarily, the parties’ proposals in respect of same) should not be considered separately from the issue of best interests. In truth, the proposals, including potential relocation, form part of the factual permutations within which best interests must be considered and findings made;
·The court is not bound by the parties’ proposals. Where the evidence points to an alternative being in the best interests of the children, orders should be crafted by the court accordingly;
·Findings in respect of the relevant s 60CC considerations, and an ultimate analysis and balancing of those findings should, when applicable, take account of the prospect of equal or substantial and significant time, whether because s 65DAA mandates it or because either is a proposal of the parties or looms as a potential order;
The Issue of Parental Responsibility
As earlier indicated, the proposals put forward by the father constitute, in my view, a material change of circumstances to those that applied at the time of the orders made by Carmody J in September 2007. That being so, the principles applicable to the determination of parenting cases apply to this parenting case as much as they did to the last.
Here, then, the Court will be “making a parenting order in relation to a child” within the meaning of s 61DA(1) of the Act. Accordingly, the Court must apply a presumption that it is in the best interests of J for his parents to have equal shared responsibility for him.
Carmody J said in the early part of His Honour’s reasons that the father:
“has sole parental responsibility for most aspects of the child’s day to day and some long term issues, including health and emotional counselling and medical needs and contends the mother should only have supervised contact at a contact centre every second weekend”.
It is not apparent to me from the file (and nor could any of the parties advise) when any such order in respect of sole parental responsibility was made. In any event, His Honour (who was also, of course, “making a parenting order in relation to a child” within the meaning of s 61DA of the Act) held:-
“29. What I propose to do about parental responsibility subject to further argument is to do nothing, and leave 61C in place. I think it is a little too difficult to divide it up as things currently stand into parcels or aspects and you can exercise the parental responsibility to the extent that you can an if you cannot there is no point in having it if you cannot do much about it”
30. I would urge the father though, even if he might get frustrated, to continue to look for ways of including the mother in the child’s life with safety rather than looking for reasons not to do it. To find ways of achieving that in the child’s best interest rather than excuses for not doing it. Children have parents they are stuck with for better or worse, they cannot choose their parents and it is important when they are living with one parent that their relationship with the other parent in imperilled by that.
31. The law does not see the resident parent as having any more authority over the child than the other, that the parents are equally important… … And part of your responsibility as the adult providing for his needs is to do your level best to maintain a positive relationship between himself and his mother and not only do that but move to including her involvement in his life as much as is safe and reasonably practicable.”
So far as I can see, that is the only reference made by His Honour to the issue of parental responsibility. The formal order made by his honour provides:-
“…(2) pursuant to s 61C of the Family Law Act 1975, both parties be responsible for the child’s care, welfare and development whilst the child is in their respective care”.
That order, in terms, does not appear to be, on its face, an order relating to “major long term issues” as that term is defined in the Act. Section61D (1) of the Act provides that:-
1.“a parenting order confers parental responsibility for a child on a person, but only to the extent which the order confers on the person duties, powers, responsibilities or authority in relation to a child”.
2.a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
a.expressly provided for in the order; or
b.necessary to give effect to the orders.”
I can find no reference in His Honour’s reasons to the concept of equal shared parental responsibility; the presumption in favour of same or a reference to any reasons (whether by reference to J’s best interests or otherwise) why the presumption was held rebutted by His Honour.
In the present case, the issue of parental responsibility, while not referred to in any application or minutes of order by any of the parties is nevertheless live before me by reason of this being a fresh application for parenting orders and by reason of the application of the presumption to proceedings of that type. Clearly, if that presumption applies then, in turn, the provisions of s 65DAA of the Act also applies.
The statutory presumption is rebuttable in circumstances where the court has reasonable grounds to believe that (relevantly) it is in the bests interests of the children for that presumption to be rebutted. Again, then, the s 60CC findings as to best interests are called into use. In my view, a specific additional consideration (s 60CC(3)(m)) also emerges.
Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save as the court orders, each of the father and mother has parental responsibility for J. A parenting order does not derogate from that save as is expressly ordered.
But, the Act requires something that appears, at least in terms, different: the rebuttable presumption in that situation is that the parents have “equal shared parental responsibility”. That phrase is not separately defined.
Not only is that phrase not defined, it might be thought to involve a concept different from that which guides the practicalities of co-parenting of children in either intact families or in arrangements where high levels of co-operation, respect and agreement attend consensual post-separation co-parenting arrangements.
In those situations, there can be little doubt that, appropriately, parties share parental responsibility (as defined). Yet, common experience shows that parental responsibility (or, at least, aspects of it, for example, responsibilities and duties) is - for a variety of reasons, some born of necessity, others not - by no means always, or even frequently, shared equally.
The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those having equal shared parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
The parties here have no effective communication or capacity to co-parent in any meaningful way. I consider there is a negligible prospect of that changing in the future. The difficulties accordingly created, and more particularly the impact of those difficulties upon the children, seem to me to be antithetical to J’s best interests. Those difficulties are likely to be all the more acute if J is to reside with his father in Melbourne.
A finding that the parties are utterly incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility, and a finding that this incapacity is highly likely to spill over into regular future conflict for J appears to me to lead to a conclusion that the sharing of parental responsibility in the manner envisaged by s 65DAC – and, in particular, sharing parental responsibility equally - is contra-indicated in J’s best interests.
Equally, though, an order for “sole parental responsibility” in favour of a party suggests, as I said in argument with counsel for the ICL, at least arguably, that the other party has no rights, responsibilities and authority in respect of “major long term issues” for J save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their child - particularly when, as here, there are many years until the child turns 18 - is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
As it seems to me, a decision about parental responsibility and, specifically about whether the statutory presumption of equal shared parental responsibility is rebutted by reason of “best interests”, involves the balancing of the considerations just referred to, always bearing in mind that J’s best interests, given his particular circumstances, is the ultimate criterion.
One outcome of the specific application of those principles to J’s best interests might be, for example, the enumeration of aspects of parental responsibility that will be shared (including equally) and those which are not. Or, an outcome might be, for example, to leave an ultimate decision or decisions to a party, but to make provision for formal input into any such decision by the other party.
In my opinion, the latter is the course which is in J’s best interests and which balances the considerations just referred to.
I propose to make orders that will leave the ultimate decision in respect of “long term issues” as defined solely to the father, but after a process affording to the mother notice of any such decision, seeking input from her should she choose to give it and requiring consideration of same by the father in respect of those issues.
The Child’s Best Interests – Findings as to Live With and Time
The order just referred to in respect of parental responsibility is founded on a number of findings relevant to J’s best interests which will in a moment be enumerated.
I have also decided that it is in J’s best interests that he continue to live with his father, the father’s wife and their child, his sister R born in August 2006, including in circumstances where they reside in Melbourne.
Furthermore, and with some hesitation, I intend to order that time between J and his mother be supervised.
The ultimate findings which underpin those decisions are as follows:
·I consider that the mother’s psychological health is significantly impaired and impacts upon her capacity to parent J.
·In particular, I consider the mother is unable to see any good in the father or in J having a meaningful relationship with the father;
·I think it highly likely that the mother, if left alone with J, would actively undermine the father’s role as a parent and would seek to engender in J a highly negative attitude toward his father;
·I think the mother is utterly obsessed (using that word in its lay sense) with what she perceives as the wrongs of earlier court processes, this court process and many aspects of it and would not be able to contain herself in expressing those feelings to J thereby exposing him to the parental conflict directly, and indirectly, causing him confusion and emotional turmoil;
·I consider the mother is unable to accept that J is closely attached to his father;
·I consider that J is in fact closely attached to his father and to his young sibling;
·J is, in my view, progressing extremely well in his father’s care and in the care of his stepmother. I consider that the concerns expressed by the stepmother about the challenges of parenting J within a “blended family” are – contrary to the mother’s assertions in that respect – a positive sign of a parent seeking to understand and properly deal with understandable challenges. I regard the stepmother’s hesitations about living in Melbourne to be perfectly sensible and understandable concerns which do not at all impact on her capacity to parent either J or his sister.
·If the mother was – in her present state of mind – to see J in an unsupervised setting, I consider she would seek to undermine his relationship with his father. Her hiding of a note in an Easter egg during a supervised visit (to which further reference will be made below) is, in my view, a stark example of the depth of her negative feelings about the father, her psychological ill-health and, in turn, the lengths she will go to in order to influence J.
·The incident just described is also, in my judgment, a stark illustration of the responsibilities – more accurately, irresponsibility – of parenthood exhibited by the mother.
·I consider actions similar in character to the incident just mentioned are likely to occur in the future unless the mother seeks expert psychological/psychiatric help. I consider the prospects of her doing so to be poor.
·I think that prolonged and/or unprotected exposure of J to his mother - in her current state of mind - is likely to be emotionally detrimental to him;
·Any change to the current parenting arrangements is in my view likely to be emotionally upsetting to J and to be harmful to him;
·The current parenting arrangements provide for time with supervision. That has not been availed of by the mother. I do not accept her explanation of the reason for that situation continuing. I consider it more likely that because of a deep seated belief that such a restriction is unnecessary, unfair and emanating from injustice, she has not availed herself of it in the last 12 months.
·I consider the mother has not given sufficient consideration to the harmful effect that J not seeing her is likely to have had on him. His feelings have, in my judgment, been sacrificed by the mother at the stake of her feelings of injustice and sense of being wronged;
·I have no doubt, and I specifically find, that J deeply loves his mother, misses her and wants to see her;
·I have no doubt, and I specifically find, that the mother deeply loves J, misses him dreadfully and wants to see him. However I consider she wants to see him only if it is on her terms, which, in turn, means that her claims and feelings about the father, his new wife and “the system” and all within it are legitimised.
·I think J is likely to come to emotional harm if left to the unsupervised care of his mother.
Findings as to Best Interests Specific to the Relocation Proposal
Many of the findings just enumerated have, of course, direct relevance to the issue of whether J’s best interests permit of him living with his father in Melbourne.
In respect of that specific aspect of the decision about his best interests, I also make the following findings.
J is, in my judgment, clearly too young to express “views” that could be seen as effectively determinative, or highly persuasive, of what might be in his best interests. But, the views of children of this age are more complex and multi-faceted then simply expressing a preference for adult alternatives placed before them. In particular, I consider that what children of J’s age and obvious intelligence have to say, says much about their own perceptions of their attachments to their respective parents and the role that each of their respective parents have, or should have, in their lives.
Mr F comments:-
“56. I asked [J] about going to Melbourne. He said that his father “wants to go to Melbourne to work and see family more. Because he doesn’t and I don’t get to see family”. [J] made positive comments about going to Melbourne. He listed off a number of family members living there. I asked what things he would feel sad about if he were to live in Melbourne. He said “no”.
57. I prompted him about his feelings about being so far from his mother. He said “well Daddy could take me on a plane to the Gold Coast”.”
Mr F also goes on to say:
“85. If [J] relocates to Melbourne, it severely limits the scope for frequency of time with his Mother. It does not, however, limit the scope of frequent communication by other means. [J] is of an age where he can manage fairly independently on the telephone and with email. If it is to be accepted on the basis of the previous judgment that monitoring is required, it leaves [the father] in the position of monitoring the calls and the letters. The risk of this form of communication is the likelihood that [J] may be exposed to parental conflict and mistrust. There would, in my view, need to be some fairly clear structure governing these forms of communication.”
Ultimately the recommendation of Mr F is that J be at liberty to relocate with his father to Victoria with orders for telephone communication, mail, email and visits at Contact Centres in Melbourne and the Gold Coast.
Despite the mother’s apparent unwillingness to share details of her form of work with either Dr M or the court, the inferences available to me indicate that whatever this mysterious work is, it is either not remunerative or not significantly remunerative. The mother gives evidence that she receives a disability pension.
A central component of the father’s case is the improvement in his financial circumstances if he moves to Melbourne. He, of course, fully supports J, his new child and the family unit thereby constituted. I can, I think, take judicial notice of the fact that a move to Melbourne is likely to involve significant expense.
However, as I earlier indicated, I am of the view that it is important for J to see his mother. The father told both Dr M and Mr F that he thought that was important also. I would not like to see relative impecuniosity be the only reason why that did not take place. The air fares are, in any event, only part of the expense involved.
On balance, it seems to me appropriate in J’s best interests to make the Orders sought by the ICL.
The Issue of Name
A number of factors have been suggested (in the pre-reform Act environment) as relevant to be taken into account when the Court is confronted with the issue of a child’s name. (see eg Chapman v Palmer (1978) FLC 90 – 510; Beach v Stemmler (1979) FLC 90 – 692). Clearly enough the best interests of J should dictate any such determination.
Here, the father contends that J is known by the name “[Brown]” in all circumstances in which one might expect the name of a child to be relevant on a day to day level. The father indicated, for example, enrolment at school, Medicare and the like.
The mother asserts that J’s name is “[Crawford]” on his birth certificate and as such should remain as such. The father submits that the name “[Brown]” is the one with which J is more familiar and that forcing him (in effect) to change his name is likely to cause him confusion. He further submits that it is likely to cause confusion with authorities (for example obtaining a passport, bank accounts and the like) later in his life
Mr F specifically addressed the issue of his name with J. :-
“59. I asked [J] about his name and he said his name was [J Brown]. I asked him if he knew what a birth certificate was and he shook his head. I explained what it was and that it had a different name on it. He said that he knew this. He said “[Crawford] is off a show like […]. Do you know [the show]?”. I nodded. He said they were a smart group called [Crawford] and “my Mum named me that”.
60. [J] was quite sensitive to questions about his name and how his views might be taken by his mother and father. After some discussion he appeared comfortable with the report writer indicating to the court that he was quite used to using his present name of [J Brown] and a change again now would be an unusual thing to have to do at this stage. He wanted it made quite clear to both of his parents that he has no difficulty with his formal name remaining unchanged. He has no concern about using a different name on a day to day basis”.
The contact centre co-ordinator includes in her report, in respect of a supervised visit on 09 December 2006 that:-
“…[J] advised [the mother] that his dad said the name [Crawford] is disgusting and that his name is [J Brown]. [The mother] stated “no, your name is [J Crawford]”. [The mother] enquired which name he preferred and [J] replied: “[J Crawford]”. [The mother] enquired from [J] if he was OK with Dad. [J] replied that he was but that he would “rather live with mum”.
It is to be observed that the opinion there expressed was that of a 6 and a half year old child compared to the 8 and a half year old child speaking to Mr F and occurs when his mother is questioning him.
Mr F concludes:-
“88.It is my view that [J], without any sense of guilt or obligation, freely refers to himself as [J Brown]. He appears entirely aware that his name is recorded differently. This does not appear to concern him. It would however probably concern him if he had to use his original name. Given the general position of the parties in interview, it is my view (on the basis that [J] remains in the care of his father) that the Court remains silent on the issue of [J’s] name”.
It seems to me there is little evidence to support the father’s contention that J is confused about his name. Indeed, the opposite seems to be the case.
Whilst it is, of course, possible to postulate circumstances in which names used commonly by people differing from their birth certificate name might “cause confusion” in the sorts of official circumstances referred to by the father, there is in my view no evidence of that in this case.
Changing a birth certificate has long-standing ramifications, not the least of which is the message it potentially sends to a child yet to attain significant maturity about the role of his mother in his life.
It seems to me that any potential confusion in the circumstances just described is met by an order of this court reflecting a recognition of the fact that the name currently used on a day to day basis by the father and his household, differs from that which is recorded on his birth certificate.
I am not persuaded that I should make an order effecting a change in the latter. Nor am I persuaded that I should make an order restraining the father from referring to the child in the manner earlier described whilst he is in his care.
Restrictions on the Mother Bringing Further Proceedings
Some difficulties obviously attend the situation in which the father, for the first time in the proceedings, raises in his address the prospect of an order seeking to restrain the mother bringing further proceedings without leave. However, the issues underpinning it are long-standing and were fully explored at this hearing.
This is a matter specifically referred to in the circumstances outlined in s 118 of the Act. It might be observed, however, that s 64B(2)(g) also contemplates conditions being placed on the bringing of future applications to vary parenting orders by reason of alleged changed circumstances.
It seems to me that the attitude of the mother manifested in the proceedings was both stark and unequivocal.
I was disturbed not only by the content of what she said about the prospect of future litigation, but the terms and manner of saying it, particularly when purporting to cross examine the father’s wife. In fact, I was so troubled that, at the time, I asked the mother whether the statement was “a threat or a question”.
The statement, as expressed, certainly was (despite the mother’s denial of that) redolent of a threat as I perceived it, particularly given that the mother had shortly prior to making it, addressed questions to the father’s wife relating to the alleged fragility in the relationship between the father and her, and difficulties she may have had in parenting J.
Moreover, the issue of the mother’s attitude, in particular as it manifests itself in litigation, and her complaints in respect of the court process, have been continually expressed openly to report writers in previous proceedings and in the current proceedings.
The terms of s 118(1)(c) present a difficulty which stands in the way of making an order of the type sought pursuant to that section. The terms of the section provide that an order of the type envisaged by the father (requiring the mother to seek permission of the court prior to instituting further proceedings) may only be made within proceedings that are frivolous or vexatious. (See Vlug v Poulos (1997) 22 FamLR).
The proceedings before me in respect of the orders sought by the wife I would not describe as fitting that category. Although they seek to in effect re-agitate issues previously dealt with by the court, it seems plain that the catalyst for seeking those orders is the father’s proposed relocation to Melbourne with all that implies in terms of the potential parenting relationship between the mother and J.
The court has, though, an inherent power, independent of s 118, to make orders regulating its own process if it considers that such orders are appropriate to the orderly conduct of proceedings within it.
That, in my view, is all the more so if the court is prepared to find that a consequence of making an order of that type by reference to the court’s inherent jurisdiction, is likely to have a beneficial effect (whether direct or indirect) on a child the subject of, or likely to be the subject of, proceedings in this court. The legislature seems to have that specifically in mind in enacting s 64B(2)(g).
I have no doubt – and the evidence of the father and his wife confirms – that these current proceedings, with all they entail, has been a significant stress to them and their relationship. I equally have no doubt that the proceedings have been a significant stress to the mother.
However, as ordered by me, the father and his wife will have the predominant day to day care of a young child the subject of these proceedings (together with an even younger sibling of that child).
The continuation of stress, and in particular the stress inherent in parenting litigation in this court, is likely to do neither the father nor his wife any good in the post-hearing parenting of this child. Litigation has been ongoing in respect of him for a long time. If the parents are considerate of his best interests, it should stop. I have no doubts at all that a curtailment of future proceedings is in J’s best interests.
The mother has evidenced a very clear intention that proceedings will not stop. In particular, she has evidenced a very clear intention to re-agitate issues now agitated twice in a trial and before three court-appointed experts.
She made it clear to the father’s wife that she should, as it were, prepare herself for that fact and, implicitly, that the relationship between the father and his wife and their parenting of J should prepare itself for that eventuality.
If an order was made requiring the mother to seek the leave of this court prior to the institution of any further parenting proceedings in respect of J the practical effect of it would be to require the mother to undergo a step prior to imposing upon the father (and indirectly J) the stress of involving himself in those mooted proceedings.
If a court was in the future to make a decision that the circumstances directly relevant to J’s best interest justified the granting of permission to the mother to commence such proceedings then the prejudice to the mother would be the delay inherent in such a process. Obviously enough, procedures exist within the court for cases of genuine urgency.
If, on the other hand, the court was to determine that, on the then application of the mother that insufficient grounds were established to proceed further with an application, then the father (and, crucially, J) need not be subjected to the stress of those proceedings.
On balance it seems to me that any potential prejudice to the mother in the making of such an order is, when compared to the potential benefit to J, significantly outweighed by the latter.
Moreover, it seems to me that, in light of the statements made by the mother in the circumstances of this case, the orderly conduct of parenting proceedings in this court should also be taken account. When the subject matter of the mooted proceedings is parenting orders, Division 12A, and s 69ZN(3) in particular, evidences a clear intention that the court should consider, as a first principle, the needs of the child and the impact that the conduct of the proceedings may have on the child in determining the conduct of those proceedings.
With that aim in mind, the Court is mandatorally directed to “actively direct, control and manage the conduct of the proceedings”. (s 69ZN(4)).
It seems to me that those provisions apply equally to mooted parenting proceedings. The inherent power of this Court, and the specific power contained in s 64B(2)(g), ought in my view be exercised in a manner consistent with the principles just enunciated.
I consider that an order requiring the mother to obtain leave prior to the institution of further parenting proceedings with respect to J is both justified in the circumstances of this case and consistent with the principles just referred to.
Other Injunctive Relief Sought by the Father
The further orders sought by the father were also raised by him for the first time in address.
I am not persuaded that I should make the orders sought.
Quite apart from the fact that the issue was not properly canvassed during the hearing (and noting the latitude in the conduct of hearings provided by Division 12A), it seems to me that there is no evidence which warrants the making of those injunctions at this time.
The mother will be residing (at least foreseeably) on the Gold Coast; J and the father in Melbourne. I can’t see why the mother should not know where J is living and where he is attending school. She says she now knows what she should and should not do.
Any inappropriate behaviour can, in the first instance, be, I am sure, addressed by the school which is situated some 2000 kilometres away.
I am not persuaded that school reports and other documents should be “anonymised” so as to prevent the mother knowing details of J’s school and residence.
Whilst the incident at the contact centre, when combined with the evidence of Dr M is evidence of some risk of absconding, there is, I think, little opportunity for that to occur; the mother specifically denies any such intent and there is little other evidence of the likelihood of occurrence.
Of course, the orders themselves provide obligations on parties under the Act and the mother evidences some knowledge of the Act, will be notified of those provisions in the Orders and is an intelligent woman capable of accessing the relevant provisions.
I order accordingly.
I certify that the preceding two hundred and thirty-six (236) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 19 February 2009
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