Caplan and Caplan

Case •

[2016] FamCA 554

•

6 July 2016

FAMILY COURT OF AUSTRALIA

CAPLAN & CAPLAN [2016] FamCA 554
FAMILY LAW – CHILDREN – Where there is a long history of parenting proceedings – Where the children ordinarily reside with the father – Where the children’s relationship with the mother has broken down for periods of time – Where orders have been previously made for the eldest child to make her own decisions about time with the mother – Where the eldest child no longer sees the mother – Where the main issue for determination is the time the youngest child is to spend with the mother – Where the youngest child seeks the same arrangement as the eldest child in relation to time with the mother – Where great weight is put on making an order that lessens the likelihood of further litigation –Where it is ordered that the father have sole parental responsibility for the eldest child – Where the parties have been able to resolve issues in the past when making joint decisions for the youngest child – Where it is ordered that the parents have shared parental responsibility for the youngest child, except in relation to her health, where the father will have sole parental responsibility to make a decision about a major long term issue in respect to health, after all reasonable attempts have been made with the mother to reach a joint decision about that issue – Where it is ordered that each child spend time with the mother at times agreed between each child and the mother – Where the father may travel with the children outside Australia at times he chooses – Where the mother may travel with the children outside Australia at times agreed to in writing with each child – Where there is no reason to make an order restricting the mother’s travel to Hague convention countries – Where the father’s application for an order that the ruby ring held on trust by the mother be given to the youngest child is dismissed.

Australian Passports Act 2005 (Cth)

Family Law Act 1975 (Cth)
APPLICANT: Mr Caplan
RESPONDENT: Ms Caplan
INDEPENDENT CHILDREN’S LAWYER: Ms Smith
FILE NUMBER: SYC 888 of 2012
DATE DELIVERED: 6 July 2016
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Watts J
HEARING DATE: 6 May 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person
SOLICITOR FOR THE RESPONDENT: Campbell Paton & Taylor
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

  1. Any previous parenting orders relating to P (born … 2000) (“P”) and R (born … 2002) (“R”) (collectively “the children”) be discharged.

  2. The father have sole parental responsibility for making decisions about major long term issues in respect of P.

  3. The parties have shared parental responsibility for making decisions about major long term issues in respect of R in relation to:

    3.1.Education;

    3.2.Her religious and cultural upbringing;

    3.3.Her name; and

    3.4.Changes to her living arrangements that make it significantly more difficult for the children to spend time with a parent.

  4. The father will have sole parental responsibility for making decisions about major long term issues in relation to R’s health upon the following conditions:

    4.1.The father is to

    4.1.1.consult the mother in relation to the decision that is to be made about that issue; and

    4.1.2.make a genuine effort to come to a joint decision with the mother about that issue.

    4.2.In the event that after all reasonable attempts have been made to reach a joint decision that is not possible, then the father is to make a decision about that issue.

  5. The mother should be involved as much as possible in the decision making process in relation to medical treatment for R, including being able to attend all relevant meetings with medical practitioners and attend any premises where and at a time when consultation or treatment is taking place.

  6. In the event of either child suffering a serious illness or injury then the parent, with whom the child is, shall inform the other parent as soon as practicable and shall authorise any medical practitioner or hospital to release to that party all information requested by them.

  7. The children live with the father.

  8. Each child spend time with the mother at times agreed between each child and the mother.

  9. The father is to facilitate the implementation of arrangements made between each child and the mother in respect of spending time with the mother.

  10. Subject to these orders, each child may travel with the father outside Australia at times nominated by the father.

  11. Subject to these orders each child may travel with the mother outside Australia at times agreed to in writing between the mother and the child with the mother to provide to the father a copy of that document as soon as is practicable after it is signed.

  12. Subject to these orders, each party have the option to travel with the children outside the Commonwealth of Australia for the purposes of a holiday upon the following conditions:

    12.1.The travelling party give the non-travelling party twenty eight (28) days written notice of the intention to travel including destination and duration of travel.

    12.2.The travelling parent shall provide to the non-travelling parent a copy of the children’s ticket and itinerary not less than fourteen (14) days prior to travel.

  13. The father shall hold the children’s passports subject to order 14.

  14. In the event that the mother wishes to travel overseas with either or both the children, then the father shall:

    14.1.Provide to the mother P and/or R’s passport for the purposes of purchasing airline tickets and accommodation within twenty four hours of a written request and the mother shall return the passport after completion of the purchase of airline tickets and accommodation.

    14.2.Provide to the mother not less than seven (14) days prior to the date of travel P and/or R’s passport and the mother shall return the passport within twenty four (48) hours of arriving back into Australia.

  15. Each of the parties shall do all such acts and things and sign all such documents as may be required to renew or cause to be issued a valid passport for P and/or R.

  16. In the event that either party refuses to provide consent for the issue and/or renewal of a passport for P and/or R within seven days of an application for a passport having been submitted to that party, then the party requesting the issue and/or renewal of the passport is permitted to apply for the issue and/or renewal of an Australian passport for P and/or R under the provision of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) notwithstanding that the other party has not provided their written consent.

  17. The father’s application in relation to the ruby and diamond ring once owned by Aunt D is dismissed.

  18. Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 888  of 2012

Mr Caplan

Applicant

And

Ms Caplan

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

  1. I have been attempting to manage this case (some would say without great success) for about a decade. At the end of these proceedings I said to both the parents (in as nice a way as I could) that I hoped I would never see them again. The proceedings relate to the two children of the parties marriage, P, born in 2000 (“P”) and R, born in 2002 (“R”) (collectively “the children”). P was a toddler and R was a baby when their parents first commenced litigating about parenting issues in the Family Court. There have been two final hearings and many interlocutory applications since those final hearings. I commenced the second final hearing when the girls were aged 6 and 4. At the end of the second final hearing, I placed the children with the father and they have lived with him since that time. There have been periods of time when the children’s relationship with the mother has broken down. With the assistance of significant counselling from time to time, both R and P were reintroduced to the mother. After R ran away from the mother’s household in July 2013, she did not see the mother for 18 months.

  2. In February 2015 I made orders allowing P to make her own decisions about her future relationship with the mother. P, who is now 15, is not currently seeing the mother. In March 2015 I kept in place defined orders as to when R would see the mother. R now expresses the wish to be able to have a significant say in what time she should have with the mother. The parents are unable to agree on what order should be made relating to R spending time with the mother in the future.

  3. The parties are also unable to agree on what order should be made in relation to parental responsibility relating to future decisions in respect of the children’s health. There is some disagreement about the terms of overseas travel. There is also a dispute relating to a ruby ring which the father wishes the mother to give to R.

APPLICATIONS

  1. The orders the parties seek are set out in Schedule 1.

BACKGROUND

  1. Ms Caplan (“the mother”) was born in 1960.

  2. Mr Caplan (“the father”) was born in 1960.

  3. The parties married in 1998.

  4. P was born in 2000 (now aged 15).

  5. R was born in 2002 (now nearly 14).

  6. The parties separated on 1 May 2003 and were divorced on 28 July 2005.

  7. On 17 November 2008 final parenting orders were made providing that the parents have equal shared parental responsibility; that the children live with the father and spend substantial and significant time with the mother.

  8. On 19 February 2015 orders were made that P spend time with the mother at times agreed between her and the mother. Since these orders, P has chosen not to attend visits with the mother.

  9. On 30 March 2015 orders were made in relation to R’s time with the mother. Since this date, apart from a disagreement relating to one weekend, R has spent time with the mother in accordance with these orders.

SOME RELEVANT EVIDENCE BY THE MOTHER

  1. The current orders provide for R to spend time with the mother every second weekend and approximately half of the school holidays. The mother says that part of the school holiday time is spent with her in Sydney visiting the mother’s other daughter, Ms N and family. She says that R plays with Ms N’s daughter, B. The mother says that she and R have been able to coordinate flexible arrangements in relation to their time together.

  2. The mother states:

    Between February 2015 and July 2015, after [R] resumed spending time with me as facilitated by the counsellor, [Ms A], I saw [R] progressively gaining in happiness and confidence, and the quality of our relationship continuing as if no time had passed. For the six months or so during 2015 while [R] was openly announcing plans to live with me for 50% of the time after her 13th birthday, I saw and took note of how [R] was extremely happy, confident, well-adjusted, and optimistic in her outlook on all levels.

  3. In 2015 the mother held R’s 13th birthday party at her home in G Town. The mother reports that this party was a “total success” and she says that according to R, it was her “best birthday party ever”. The mother says, “I gathered from reading the ‘wishes report’ that R needed to step back from claiming ‘ownership’ of her birthday party in 2015, and that’s okay with me.”

  4. The mother states:

    [R’s] December/January 2016 holidays with me were really great. We had a fantastic time together in [G Town], and in Sydney. We spent plenty of time with [Ms N] and [B], as well as visiting long-standing family friends. [R] enjoyed herself everywhere we went, and with everything we did. Everyone had gifts for [P] and [R], and [R] assured all that [P] enjoyed getting gifts from us. [P] sent [B] a gift and card via [R]. [R] had made a gift and card for [B], and surprised all by giving [Ms N] and her husband a small but significant gift bought during time with her father, reportedly from her own pocket money. [Ms N] had coordinated with [R] so that I would be surprised with a significant gift too. We had great baking sessions in [Ms N’s] kitchen, all of us joining in. We went to the beach, [R] played with [B], we went on walks, attended events, saw movies and had a lovely time.

  5. The mother says, “R keeps me updated with what she is doing at school. I support R’s studies with extra-curricular experiences and resources where possible, and allow R any time and space needed to study or work on school assignments during time spent with me.”

  6. The mother states that her time with R has been wonderful except on rare occasions which she recounts in her affidavit.

  7. The mother says:

    [R] is still telling me, happily and breezily, that I should expect her to continue spending every second weekend and half the school holidays with me. [R] has told me as recently as two weeks ago, just in normal conversation about forward plans in general, that in her mind this arrangement will continue for the next four years at least, until she finishes high school in [G Town] … just a few weeks ago, 5-6 March 2016, [R] spontaneously decided to take stock of her winter wardrobe at my place to see what items from last year will still fit this winter, and what will be needed at my place to be well kitted-out for her weekends and holidays in [G Town] and Sydney. [R] is already making her own plans for her 14th birthday at my place in … 2016.

    [R] has also been telling me lately that in July this year, when [Ms N’s] next baby is born, she would like me to organise it for her so that she could spend extended time with me in Sydney – perhaps the whole holidays, or several weekends in a row – so that she can more fully participate in the birth of [Ms N’s] next baby and helping to care for [B] at around the time of the birth. Outside of controlled interview situations, [R] seems to have no real idea of the utter gravity of proceedings, nor how things she has said may affect her profoundly. Perhaps [R] dreams or hopes that I’ll somehow be able to “fix everything”, like she’s asked me to do as her “Mum” on many occasions, and like she has observed me doing in my work.

    I recently explained to [R] how [Ms N] has asked me to live near her in Sydney for a while after her next baby is born in July, so I can help [Ms N] care for [B] and the new baby. Given this imminent possibility, [R] said she’d be happy to “fly to Sydney every two weeks” to be with me, but I told [R] I couldn’t afford such an arrangement. As a compromise, I’ve said to [R]: “If I can still maintain a place in [G Town] while living in Sydney, I could come back to [G Town] one weekend per month to be with you, then since you’re not keen on long car trips, maybe I could afford to fly you to Sydney to join the whole family on the other weekend per month, and just do the car trips when it’s our holidays,” and [R’s] word was: “Perfect.”

  8. The mother says, the she observed the Order preventing her from discussing the wishes report with R. However, she says that this order was “unnecessary”. She states:

    [R] had previously told me – not just once but many times over, including recently – that I was not to believe in nor worry about anything she ever said about me or whatever she expressed to her father or any other people [associated with Family Court proceedings].

    I was not surprised by what the ‘wishes’ reporter wrote. I had predicted it as “inevitable” given the situation still surrounding [P] and [R]. On many occasions over the years I have assured both [P] and [R] that I truly understand how difficult it can be for some children when their parents are separated or divorced, and that I have never blamed them for anything they ever needed to say or do just to make their own situations less difficult.

STATUTORY CONSIDERATIONS

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

  1. The children both have the benefit of having a meaningful relationship with the father. For over a decade there has been a focus in the various court proceedings in attempting to maximise the benefit to each child of having a meaningful relationship with the mother.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

  1. In A/Prof Q’s March 2014 report, she makes statements which I find accurately record some of what the children experienced in their mother’s household prior to that time:

    The children report that their mother has been verbally and physically abusive towards them. [R] reports that her mother has hit her on more than one occasion and so she is now fearful and is not prepared to resume contact. [P] also reports the mother hitting her and she supports [R’s] position but at present she is willing to have some, limited, contact with her mother.

    The counsellor who was seeing the girls over that period of time, Ms E, confirms that they made reports to her of their mother hitting them and that a DoCS notification was made.

    Notifications were made to DoCS and to police in July 2013 (when [R] fled from her mother’s house) and that while there was certainly concern expressed by these agencies that both parents were making reports in the context of longstanding conflict and Family Law proceedings, nevertheless it does appear that there have been times when the mother has hit the girls. There was also a notification when the girls were exposed to a distressing incident, in March 2013, when [Mr K] [the mother’s former partner] had some kind of mental breakdown. [Ms Caplan] acknowledges that this occurred and because of possible risk to the children she has ended a longstanding relationship with [Mr K]. While that was an appropriate decision I note that it has brought its own problems: the abrupt disappearance from their lives of someone to whom the girls had formed a significant attachment.

    The mother denies that she has ever been abusive in any way towards the children and definitely denies any physical abuse towards either of them.

    There do not appear to be issues of physical or verbal abuse arising in the context of the father’s household.

  2. More recently, the father made clear that since the March 2015 orders had been made, to his knowledge, there has been no incident involving any physical danger to R. He does however quote instances where he says R was in psychological danger.

  3. The father says that when R comes back from time with the mother she is angry and unhappy at having been there.

  4. On 27 September 2015 the father received a text message from R whilst she was in the mother’s care stating, “I want to go home. It’s mum. She’s like sort of drunk and saying REALLY bad stuff about you and [Ms H] [the father’s current wife] and calling me a liar. Im (sic) serious. And she keeps saying if I run away she’ll sue me and [P] (sic) and sell the ruby ring I keep asking for. She said she’ll destroy me.”  

  5. In January 2016, R reported some of the psychological stress she feels on some occasions when she has been in the mother’s household. I refer to what R said in her interview with Ms I in more detail below.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

  1. P, at the current time, has chosen not to see the mother and the mother has accepted sadly P’s current position.

  2. The report by Ms I on 14 January 2016, contains the following statements relating to R’s views:

    29.1.R stated ““I was pushed to see Mum and I really regret that. It started with emails then phone calls and then eventually meetings together. I totally regret that. Life was so much easier when I didn’t see her”. When asked to elaborate R said, “She makes me feel guilty. She says things, a bit of a manipulating person”. R also expressed concern about how she would cope with her mother when her mother sees this report. R said she was worried her mother would make her feel “guilty”. R then became a little cross and said of her mother, “you don’t get a say in what I think”. She also expressed how homesick she felt when she visited her mother.”

    29.2.When discussing other professionals opinion that they wanted to ensure R “gave it a good go” in relation to seeing her mother, R replied, ““I don’t know, I don’t know about giving a good go. She’s still the same person she was three years ago”. [R] added that she felt manipulated by her mother and when asked for a clear example [R] said, “She discusses this situation all the time. It’s always what she wants. What if I don’t want it?” [R] talked about her birthday celebrations and described them as “overdone” and be (sic) contrast she described herself as preferring “simplicity”. [R] then commented, “I have such a better family at Dad’s. At Mum’s it’s just Mum. At Dad’s it’s a whole family that I love and get along with”.”

    29.3.Ms I “asked [R] ‘if life could be even better than, what would it be?’ and she replied, “not really rules. The decision with [P] is that she can choose to see Mum whereas I have to go to see Mum every second weekend and half the holidays. Maybe I could handle one week with her”. R elaborated by saying, “When you choose its (sic) better”. [R] said she found the fortnightly arrangement restrictive and as a result had missed out on attending [an outing] which she enjoys. [R] said that if she were allowed to choose when to see her mother that she would continue to see her mother: “I would probably keep seeing her every second weekend but I would sometimes say I’ll just see you on Sunday”.” When asked “‘if that was the case then what difference having the choice would make in reality?’ [R] replied, “I’ve never felt guilt until Mum makes me. She cries a lot and make (sic) me feel guilty and she cries about [P]”. … Essentially [R] said she would like flexibility to be built into the arrangement. [R] then stressed that life was easier when she did not see her mother at all.”

    29.4.When asked what the best arrangement for her would be, R responded, ““The same as [P]. Mine would be the same case but I would actually see her”. [R] added the condition, “and no more guilt and mum sitting down and ranting and shedding tears”.”

    29.5.When asked how R would feel if the Court decided that the arrangement would be for her to see the mother fortnightly plus half the holidays, she replied, “every second weekend I’d be fine with but it means I would miss out on a lot of things. Summer holidays I couldn’t do more than two weeks. I can barely do two weeks. I just want the same as [P].”

    29.6.When presented with a scenario where the Court ordered R to see the mother more often, R replied, “Mum can’t change and I can’t change to like her and seeing each other more won’t change that”.

    29.7.R was asked to rate her certainty about wanting the same arrangement as P, zero being not certain at all and ten being completely certain. R rated her certainty as nine out of ten.

    29.8.R was asked to rate her certainty about continuing to see the mother on a fortnightly basis if she was given the choice. R rated her certainty as seven or eight out of ten certain that she would continue to see the mother on most weekends if she had the choice.

    29.9.When asked what her ideal situation would be if it was guaranteed that no one would get upset with her decision, R responded, ““Not to see her”. R said she was 9 out of 10 certain that she would not want to see her mother if no-one would get upset.”

    29.10.Ms I summarised R’s views back to her as “in a world where no-one got upset she would not see her mother. Otherwise she wanted a flexible arrangement like her sister has whereby she would most likely maintain regular contact with her mother. [R] also wanted a maximum of two weeks contact over the summer holidays.”

  1. The father says on 15 November 2015 when R returned from a visit with the mother, she said to the father, “Mum keeps saying she will sue [P] and make her bankrupt if she says anything bad about her. She keeps saying really bad thing (sic) about you and [Ms H] [a nickname of the father’s current wife]. She behaves differently when [Mr J] is around, but he wasn’t here this weekend.” Mr J is the mother’s partner. The father asked R if she wanted to continue the weekend visits with the mother. He says R replied, “If I don’t go she will get really angry with me. I’m all alone at her place and I don’t want her to be angry. I really miss [P] and being with you guys.”

  2. Although it is less current information, and a good deal of counselling has happened since, I note that A/Prof Q states that as at the beginning of 2014:

    At present [R] is quite adamant that she wants no contact and insists that her mother has been abusive towards her, including hitting her in the abdomen; she is very distressed about this and now refuses to spend any time with her mother. At the time of this assessment [R] was manifestly extremely distressed and fearful at the prospect of a meeting with her mother and refused to participate.

The nature of the relationship of the child with: each of the child's parents; and other persons (including any grandparent or other relative of the child)

  1. In A/Prof Q’s report, she states:

    The girls have a strong attachment to each other, as is to be expected of siblings raised together. They have a secure relationship with their father and their stepmother.

    While initially their mother was their primary attachment figure, over time and with the sustained conflict and a number of distressing experiences, the relationship of the girls with their mother has become more ambivalent and more conflicted. Given their earlier strong bond of attachment to her it is likely, however, that there persists a fundamental attachment, no matter how ambivalent.

  2. A/Prof Q also states:

    The manifest estrangement of the children from their mother has arisen in the context of many years of conflict between the parents and a readiness on the part of each to capitalise on whatever difficulties may have arisen between the children and the other parent. The balance was tipped dramatically after the crisis involving [Mr K] (March 2013) and then again after [R] fled from her mother’s house (July 2013) and reported that the mother had hit her.

    When I first assessed the girls, in 2006, they were aged 4 and 6; they were primarily attached to their mother at that stage and had been traumatised by abrupt separation from her. Since then there has been sustained conflict between the parties plus a period of mental instability with the mother and the allegiances of the children have slowly shifted to the present situation where they have a more comfortable relationship with their father and stepmother and quite a turbulent relationship with their mother and, more recently again, significant estrangement from her. It is likely that all of this has occurred at considerable cost to their psychological development.

    Given this context and considering that [P] is now aged 14, it would be difficult to institute any arrangement other than her preferred option which, at present, is for contact with her mother essentially on her own terms.

    [R] is in a more difficult position as she is younger and she is more troubled by the situation to the extent that she presents as clinically depressed. While it would be in her best interests to maintain some contact with her mother, this would be difficult for her to cope with alone and without the presence of [P]. Any contact would need to be arranged in a way that [R] can accept and in a way that protects her from future crises. It is of concern that [R] has lost trust in the adult world and, particularly, in the professionals who have been involved in this; that reaction can be understood as ‘loss of belief in a just world’, a phenomenon that is known to be psychologically damaging, especially during the adolescent years …  Thus, [R] needs protection from further risk of harm and, as part of such protection, it is important that her trust in the adult world be restored.

The extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

  1. This is not of any weight.

The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

  1. No issue relating to child support was raised.

The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

  1. In A/Prof Q’s report, she states:

    Cessation of all contact with the mother may prove psychologically challenging for the girls since they were at one time strongly attached to her and it is likely that this fundamental bond has endured, although it is now a highly ambivalent one. It is characteristic of ambivalent relationships that when terminated by death or by separation they can be difficult to resolve and this can lead to ongoing psychological difficulties.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

  1. The parties have a history of compliance with court orders. Sometimes this has required travel (particularly by the mother) of significant distances.

  2. A/Prof Q states in her report:

    For a time there was a period of stability in the parenting arrangements, which was perhaps facilitated as much by the involvement of [Mr K] as by any cooperation between the parties. He is no longer available and since the mother has now moved back to [G Town] there may have been less need for him – or for any other adult – to facilitate changeover, but in fact difficulties between the two households have escalated since then. There is little goodwill between the parents and this has been the case for many years so that they are limited in their willingness and ability to facilitate contact with each other.

  3. The mother agreed to the dismissal of any extant contravention applications that she has filed. There is no suggestion of any problem, apart from the most recent weekend, that has arisen in respect of compliance with orders that were made in March 2015. However, the mother’s lawyers raised the spectre of a contravention application as recently as the weekend before the hearing, although I accept that the mother has no intention of pressing any case where she claims that the orders had been contravened by the father.

The capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

  1. In A/Prof Q’s report, she states in relation to the mental state of the parents insofar as it affects parenting of children:

    The father and stepmother are more contained psychologically and therefore provide a calmer environment. Neither can be said to have a psychiatric disorder.

    As noted in my 2006 assessment, at her best, the mother is warm and demonstrative and creative and has the capacity to enrich the lives of her children. Under stress, however, she is not well regulated emotionally and at times her mood and her thought processes are accelerated, sometimes to the extent of fragmentation and the expression of ideas that seem irrational. These are features of a group termed the cluster B personality disorders … they are characteristics that make for a more volatile environment and adversely affect children …

    For a time there was a period of stability in the parenting arrangements, which was perhaps facilitated as much by the involvement of [Mr K] as by any cooperation between the parties. He is no longer available and since the mother has now moved back to [G Town] there may have been less need for him – or for any other adult – to facilitate changeover, but in fact difficulties between the two households have escalated since then. There is little goodwill between the parents and this has been the case for many years so that they are limited in their willingness and ability to facilitate contact with each other.

  2. A/Prof Q’s also states:       

    This has been a ‘high conflict’ … situation over a very long period of time and it is apparent that the parents have a limited capacity to prioritise the emotional needs of the children. There are no limits to their respective capacities to provide for the children in other respects.

  3. In A/Prof Q’s report, she states (as at the beginning of 2014), in relation to the mental health/special needs of the children:

    [P] is developing well at present. It may be that by removing herself from the conflict and limiting her time with her mother, as she has done, she will continue to progress well. It is likely, however, that her feelings about her relationship with her mother will fluctuate over time, especially during these critical years of adolescence, and there is some risk she may become troubled. In my view it would be in her best interests to continue sessions with [Ms A] and to use that situation to negotiate contact with her mother.

    [R] is not progressing well; when assessed in December 2013 she was clinically depressed and her relationships with peers were troubled. In such a state of mind she was even more compromised than usual to cope with this high conflict situation. Feedback from the school indicates that more recently she is progressing well so perhaps her school problems have eased; however, [Ms A] confirmed my impression that [R] is depressed and grieving and that she feels betrayed by what has transpired with her mother and disappointed in the responses of various adults. Her feelings of grief relate to a symbolic loss … the loss of the person she knew as her mother but whom she no longer perceives to be that same person; this loss is perceived as a betrayal. Similar feelings extend to the sudden change and then disappearance of [Mr K], another important attachment figure in [R’s] life. [R] expressed similar feelings towards this assessor whom she sees as having betrayed her confidence. Betrayal by significant others is highly traumagenic and damaging to both mental and physical health … and … it also undermines a child’s developing sense of ‘a just world’. Also, there was a period when [R] developed marked somatic symptoms, which provides further indication that she has suffered significant trauma since somatisation is common in abused or traumatised children and consistent with her reports of physical abuse …

    [R] has a highly ambivalent attachment to her mother and this needs careful management. There is a need for her to have some ongoing contact with her mother but in my view now is not the time to implement this and attempts to impose such on [R] at this stage are likely to exacerbate the situation and may pose a risk to her mental health. A resumption of contact would need to be negotiated slowly and carefully and, ultimately, it needs to take place in a safe and protected environment. Ideally, such a progression should be supported by her father and stepmother and, also ideally, with the presence of her sister, but none of this may be possible. It would be difficult to devise orders that could provide such slow monitoring and careful timing and decision making; this would seem to be more appropriately part of clinical management and I would recommend that it be left to [R] to resolve this with the assistance of [Ms A].

  4. A resumption of time between R and the mother was negotiated slowly and carefully.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

  1. No further comment is required.

If the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

  1. Not applicable.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

  1. In A/Prof Q’s report, she states:

    Other than having a limited capacity for meeting the emotional needs of the children, as reflected in the chronicity of this conflict, the parents have been responsible in all respects.

Any family violence involving the child or a member of the child's family

  1. In A/Prof Q’s report, she stated in early 2014:       

    … the children report that their mother has been physically abusive, more particularly this is reported by [R]; there was also an episode where [Mr K] behaved – quite uncharacteristically – in a violent manner, apparently in the context of a mental breakdown. The impact of these events has been profound and a major reason for the breakdown of the relationship between [R] and her mother and for [R’s] depressed state of mind. [P] has been affected too but is more resilient and perhaps also because she is older she has been able to cope rather more effectively with it.

If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:(i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v)  any other relevant matter

  1. There are no relevant family violence orders.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

  1. There is a strong argument that no order should be made that invites further litigation and I conclude it is important in this matter to attempt to make orders which restrict the need for either parent to come back to court.

Any other fact or circumstance that the court thinks is relevant

  1. No other fact or circumstances need be mentioned.

PARENTAL RESPONSIBILITY

  1. Section 61DA(4) Family Law Act 1975 (Cth) (“the Act”) provides that when making a parenting order the court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child unless that presumption is rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

  2. It was agreed during submissions that the parties had been able to resolve issues in relation to the high school at which R would attend. There is no issue in relation to the children’s religion. The father has indicated that he has no intention of moving away from his current location in the next four years. There is no suggestion that the name of either of the children would be changed. The parties agree and have asked me to make orders in respect of passports. That means (apart from any unusual issue) that any major long term issue that is likely to arise will only relate to the children’s health.

  3. In A/Prof Q’s report, she states, in relation to “the effect on the children of spending equal time or substantial time with each parent having regards to parent’s current and future capacity to:”

    Implement such an arrangement: … there is little goodwill between the parents so that each is limited in their capacity to facilitate contact with the other.

    Communicate with each other and resolve difficulties which might arise: Similarly, there is so little goodwill between the parents that they are unable to communicate with each other or resolve difficulties in a reasonable manner.

  4. A/Prof Q’s report was written at the beginning of 2014. The lawyer for the mother correctly points out that a decision in relation to R’s high school was successfully made by the parties at the end of 2014. The father had entertained the idea of R attending a high school different from the one that she is currently attending. The mother indicated to him that she would only agree to R’s current high school. The father, faced with the current order for equal shared parental responsibility, abandoned any idea that he might have had of sending R to a different high school.

  5. The father says:

    Since the start of these present proceedings there has been no direct contact between myself and [the mother]. [The mother] even refused to discuss [R’s] schooling, despite repeated requests. She has attended no school functions that I am aware of. [The mother] refuses to allow passports to be issued to the girls despite requests going back 10 years. As a result the girls have missed out on several overseas holidays. This is despite [the mother] saying in emails how good it would be for them to travel.

  6. The father also says that the parties have demonstrated an “inability for any meaningful or even cordial dialogue … on schooling or medical issues.

  7. The mother says:

    While [the father] and I may have had difficulties with communication, we have also both demonstrated the ability to communicate and cooperate, when most essential for [R], over the past 13 years. Communications have been more effective outside of proceedings, and I believe both parents can recommit to communicating and cooperating in [R’s] best interests once proceedings are finalised, if an Order provides joint parental responsibility.

  8. At [14] – [17], of the mother’s affidavit, the mother provides examples of where the order for joint parental responsibility has been beneficial for R.

  9. One of those examples is when R sustained serious burns when she was about 7 years of age. The mother states:

    When [R], aged eight, suffered burns following a mishap at [the father’s] family farm in [M Town], I was able to participate in supporting R through numerous treatments in the Burns Unit of [L Hospital]. Also, by attending the medical briefings about [R’s] continuing treatment at home between hospital appointments, over a period of approximately six months, I was able to ensure the continuity of day-to-day treatment for [R] no matter which household she was in, and facilitate her attendance to appointments.

  10. The mother gave oral evidence that the two parents were in the one hospital room with R with the father stroking her head whilst the mother stroked her feet. The mother agreed that the parents did not speak to one another when they were at the hospital but there was no disagreement between the parents about whether or not to follow what the doctors were recommending by way of treatment for R. Apparently during the time R was in hospital, there was an argument between the mother and the father’s current wife.

  11. The mother and the Independent Children's Lawyer say there should be a finding that on balance the parents will be able to reach a joint decision about any major long term issue that might arise in relation to the children’s health. Both recognise that if an order is made for equal shared parental responsibility and there is a disagreement about what decision should be taken in respect of the major long term issue in respect of health, the parents would have to come back to court for a resolution.

  12. I have referred earlier to the history of this litigation. I put great weight on making an order that lessens the likelihood of further litigation. In order to make such an order, the order needs to put the final decision making in relation to any major long term issue in respect of health in the hands of one of the parents. R ordinarily lives with the father. The final decision, if it needs to be made, should be made by the father. Subject to that, the mother should be as involved as possible in the medical treatment and the decision making process for the medical treatment.

  1. I will make an order that both parties consult in relation to any major long term issue in respect of health and make a genuine effort to make a decision together in relation to any major decision that needs to be taken.

  2. The father indicated that the mother could come to all consultations with specialists and all other treating professionals.

  3. It is only in the unlikely event that agreement cannot be reached that the father will be able to decide that his preferred course will be followed rather than that preferred by the mother. That will avoid them having to come back to the court for a decision which breaks the deadlock.

  4. If as was submitted, the parties were both to follow consensus medical advice, the order for parental responsibility in relation to medical treatment will never have any work to do.

TIME

  1. The recent history of R’s time with the mother was that in July 2013 R ran away from the mother’s home whilst she was with the mother. Subsequently, R did not spend any time with the mother for 18 months. Orders were made to provide therapy to R with an aim of reintroducing R to the mother through a therapeutic process. This culminated in orders being made in March 2015 as follows:

    ...

    2. That [R] spend time with her mother as follows:-

    (a)  During School Term:

    (i) Each alternate weekend from completion of school Friday to 5.30 pm Sunday.

    (ii)Such other times as agreed between the parties in writing.

    (b)  During School Holidays:

    (i) For one half of the short school term holidays as agreed between the parties but failing agreement the first half in even numbered years and the second half in odd numbered years, being after school Friday to the mid Saturday at 5.30 pm.

    (ii)Such other times as agreed between the parties in writing.

    3. In the event that [R] is not otherwise with her mother on Mother’s Day then [R] will spend time with her mother from 4.30 pm Friday to 5.30 pm Sunday but shall not spend time with her on the following weekend.

    4. In the event that these Orders otherwise provide that R is to be with her mother on Father’s Day, then [R’s] time with her mother shall commence at 4.30 pm on Thursday and conclude at 4.30 pm on the Saturday of the Father’s Day weekend.

    ...

  2. Since the orders were made in March, apart from issues which arose in relation to the weekend before the hearing when there was an unfortunate dispute as to whether or not that weekend (after school holidays) was a weekend in the normal cycle, R has seen the mother in accordance with the times set out in the orders.

  3. Unfortunately the dispute on the weekend before the hearing involved about 20 emails passing between the father and the mother’s lawyer, including the suggestion by the mother’s lawyer of a possible contravention application. R became involved in an exchange of text messages with the mother which put her right in the centre of the parental dispute.

  4. The mother’s position in relation to her immediate future living arrangements was slightly unclear to me. In her affidavit she explains that after Ms N gives birth to her new baby, she is going to live in Sydney to provide support. As set out previously, the mother told R that she would maintain accommodation in both G Town and Sydney and would return to G Town one weekend per month to see R and could fly R to Sydney on the other weekend per month as per the current orders. In her oral evidence the mother further explained that at the moment she lives between Sydney, G Town and Melbourne but once Ms N’s baby was born, she would base herself in Sydney and keep a place in G Town. She confirmed that she would either fly R to Sydney one weekend per month or she would travel to G Town to see R for the two weekends per month as per the current orders. She stated that this arrangement could be permanent.

  5. When making a decision about what time R should spend with the mother, the important considerations are:

    71.1.R’s views and the likelihood of R’s resentment if her voice is not heard;

    71.2.The mother’s fears that the same thing that has happened with P will happen with R, if R, the father and the father’s family are not constrained by a set of defined orders in relation to time;

    71.3.The pressure that R is likely to feel from the father, P and perhaps other members of the father’s family arising from arrangements that they make on particular weekends and holidays;

    71.4.The threat of future litigation;

    71.5.How facilitative will the father be if the constraints of consent orders are removed? The unresolved conflictual nature of the relationship between the mother and father will mean that the making of arrangements between R and the mother will not always be smoothly done; and

    71.6.The history of R’s recent experience in the mother’s household both positive and negative.

  6. It is not easy to balance and weight these considerations.

  7. There is a risk that if the decision making was left to negotiations between R and the mother directly, the relationship may drift away. As set out above, R made comment in the wishes report that it might be easier if she didn’t see the mother if nobody would get upset. R understands that if she chose not to see the mother, the mother would get upset. I have evidence that R has had some negative experiences in the mother’s household in the past. The mother says correctly that all of these things have never been properly tested. Nonetheless, it is probable that the comment made by R that it would be easier if she did not see the mother is partly based on some of the negative experiences that she has probably been exposed to in the mother’s household and is partly a response to her keen awareness that she is at the centre of long running and continuing parental conflict.

  8. There is some reason to believe that the situation in relation to R is different from the situation in relation to P. I accept that R has a good relationship with her older half-sister Ms N who is 32 years of age, a school teacher and a mother of one with a new baby about to arrive. R is motivated to be involved in trips to Sydney with the mother that allow her to see her half-sister and her children. The father seemed to positively acknowledge R’s attraction to Ms N’s household.

  9. Ultimately I conclude the time has come for R’s voice to be heard and for the spectre of further contravention applications to be eliminated. It is in R’s best interests for the approach to be taken which is requested by the parent with whom R ordinarily lives and which is supported by the Independent Children's Lawyer.

  10. Accordingly, I shall make orders as sought by the father and the Independent Children's Lawyer in respect of R’s time with the mother.

THE MOTHER ATTENDING SCHOOL.

  1. The mother sought an order that she be allowed to attend school events to which parents are normally invited upon being invited to do so by either R and/or P. In his oral evidence the father first said that he did not have a problem with that order. However, he did go on to say that he did not want the mother at school events because of the anxiety R feels when he and the mother are both there together. He further said that, mindful of that anxiety, if he knew the mother was going to attend a school event, he would ask R if she still wanted him to be there. The father expressed the hope that once these proceedings were over, the parents could attend peacefully. In cross examination, the mother indicated that even if this order was made now she would not attend as she knows how much it would upset the father. At the end of the hearing I was unclear as to whether or not the father consented to the original order sought by the mother and in fact whether or not the mother pressed the order that she originally sought. In those circumstances, I intend not to make any order placing any restriction upon the mother attending school events. I note that an order will be made that the father have sole parental responsibility for making decisions about major long term issues in respect of P’s education but that the parties have shared parental responsibility for making decisions about major long term issues in relation to R’s education.

OVERSEAS TRAVEL

  1. The father agreed to some but not all of the orders about overseas travel sought by the mother (as set out in Schedule 1):

    78.1.The father agreed with order 10.2.

    78.2.He agreed with the first part of 10.3 that the travelling parent should provide a copy of the child’s ticket and itinerary not less than 14 days prior to travel but he did not agree with the second part of that order that in the event that the ticket was issued later than 14 days prior to provide it within twenty-four hours.

    78.3.He did not agree with order 10.4 as he said that he had had “tremendous struggle” with R contacting the mother when she did not want to. He did not want to give oxygen to further proceedings in the event that R did not contact the mother. The father understood that his disagreement to this order would also mean that if R was away with the mother that she would not have to contact him.

    78.4.In relation to order 11, the father stated that he would like to hold the children’s passports and asked that passports by returned within 48 hours of arriving back into Australia rather than within 24 hours.

  2. The father wants to restrict the mother so that she can only take R to Hague Convention countries. He also wishes to restrict the mother to two weeks overseas travel with R.

  3. The father wants his own travel arrangements to be able to be up to six weeks (which means that he would be able to travel overseas with R for the whole of the term 4 holidays).

  4. In the wishes report, R initially stated, “Maybe I could handle one week with her”. Later, when asked how she would feel if the Court ordered that she spend half of the holidays with the mother, she stated “Summer holidays I couldn’t do more than two weeks. I can barely do two weeks. I just want the same as [P].” When R’s view was summarised it was as follows, “[R] also wanted a maximum of two weeks contact over the summer holidays”.

  5. The father indicated that he had continuing concerns about the mother’s behaviour when she is placed under stress. He sees a major overseas trip as a stressor for the mother and is apprehensive about R being away with the mother for that length of time and not being able to do anything about any vulnerable position that the mother’s psychological state exposes R to.

  6. There is an argument that the father should not be able to have it both ways. His fundamental position is that R is now old enough to be able to have a major say in what time and in what circumstances she spends time with the mother.

  7. The mother sought that both parents be restricted in their travel with the children to Hague Convention countries. There is no basis for making an order as sought by the mother that would restrict the father’s overseas travel with the children only to Hague Convention countries. Similarly, there is no evidence that the mother is a flight risk. She has a sound relationship with her oldest daughter and her grandchild. She is looking forward to the birth of her second grandchild. She has a business which she operates in Australia. Given there is no evidence that she is a flight risk, there is no reason to make an order restricting her travel only to Hague convention countries.

  8. Nor is there any reason if R and the mother reach agreement to do so, for R to be confined to only a two week overseas trip with the mother.

  9. Consequently, the father may travel with the children outside Australia at times he chooses, but not at times either child has agreed to spend with their mother. The mother may do so at times agreed to in writing with each child, with the father to be given a copy of that document as soon as possible. I will also make the orders to which the father has agreed.

  10. Given that the children ordinarily live with their father, he should hold their passports subject to conditions relating to making those passports available to facilitate any overseas travel by the children or either child with their mother.

THE RUBY RING

  1. The father makes an application that the ruby and diamond ring given by his aunt D to the mother to give to R when she turns 18 be now given by the mother to R. The power to make the order probably is contained in s 68B of the Act given the father’s evidence about this being an issue between the mother and the child.

  2. The mother says:

    I have never worn this ring, nor removed it from its box, even though it has been in my trusteeship for almost 14 years. I have no idea what the ring is worth, nor do I care. It looks to be of some value but its symbolic meaning is priceless. I will fulfil my promise to [Aunty D], with utmost fidelity, in just four more years. …

    I do not understand why [Mr Caplan] suddenly wants to take the ruby ring from my care-in-trust for [R], particularly at this point in time – almost 14 years after the fact, and with only four years to go until the ruby ring will be formally given to [R] by me.

  3. In the father’s affidavit he states, as set out previously, what R had told him in a text message on 27 September 2015 that the mother was threatening to sell the ruby ring if she ran away.

  4. The mother denies that she has ever done anything like this but given the mother’s inability in the past to contain her emotions, it is likely that she said something like this to R in the heat of conflict with R. I accept the father’s evidence that the ring is an issue for R.

  5. The father asserts that R is now old enough to wear her own jewellery.

  6. I am of the view that any conflict between R and the mother in relation to the ring should be left to the mother to sort out. I note the mother says her current intention is to give the ring to R for her 18th birthday. I decline to make any order that the mother hand the ring to R prior to a time of the mother’s choosing.

THE MOTHER’S LAWYER’S EMAIL OF 20 June 2016

  1. On 8 June 2016 the lawyer for the mother sent the following email to my associate:

    Dear Associate

    I have been instructed to write to enquire as to whether or not His Honour will consider including in the Final Orders an order to the following effect:

    ·     The father will use his best endeavours to facilitate and encourage the children to spend time with the mother.

    I have advised [Mr Caplan] and the ICL that I would write to you and you will note I have copied each of them in on this email.

    [Mr Caplan] has advised that he objects to the proposed order for the following reasons:

    1.    The proper time to propose orders is in applications, response to applications, and submissions.

    2.    This order is so unspecific as to be meaningless.

    3.    It’s unspecifity (sic) could lead to further court actions.

    The ICL has not indicated as to whether or not the proposed order is supported.

  2. All the points made by the father have weight, but particularly point 3. Given what I have said above about the need to limit future litigation, it is in the children’s best interests not to reopen the case nor to make the additional order sought by the mother.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 6 July 2016

Associate: 

Date:  6.7.2016

SCHEDULE 1

Father

  1. Both children reside with the father.

  2. The father have sole parental responsibility for the children.

  3. Nothing in these orders prevents the children having contact with the mother of their choosing.

  4. That the ruby and diamond ring, given to R by my Aunt D at R’s birth, but retained by Ms Caplan, be given to R.

Mother

  1. The father have sole parental responsibility in respect of P.

  2. P reside with her father.

  3. There be no spend time with order respecting P.

  4. The parents have equal share parental responsibility for R.

  5. R reside with the father.

  6. R to spend time with her mother as follows:

    a.During School Term

    i.Each alternate weekend from completion of school Friday to 5:30 pm Sunday.

    ii.Such other times as agreed between the parties in writing.

    b.During School Holidays

    i.For one half of the short school term holidays as agreed between the parties but failing agreement the first half in even numbered years and the second half in odd numbered years, being after school Friday to the mid Saturday at 5:30pm.

    ii.For a minimum of 19 continuous nights during the Christmas holiday period to commence as agreed or failing agreement to commence when school concludes in even numbered years and from the second half of the holidays in odd numbered years.

    c.Such other times as agreed between the parties in writing.

  7. In the event that R is not otherwise with her mother on Mother’s Day then R will spend time with her mother from 4:30pm Friday to 5:30pm Sunday but shall not spend time with her on the following weekend.

  8. In the event that these Orders otherwise provide that R is to be with her mother on Father’s Day, then R’s time with her mother shall commence at 4:30pm on Thursday and conclude at 4:30pm on the Saturday of the Father’s Day weekend.

  9. That for the purpose of change overs which do not occur at the school the change over shall occur outside the office of Ms. A unless otherwise agreed in writing between the parties.

  10. That each parent has the option to travel with R for a period of up to four (4) weeks outside the Commonwealth of Australia for the purposes of a holiday upon the following conditions:

    10.1That the travelling parent does not book or make plans for any overseas trip for R during times R would normally be with the other parent as per 2 above.

    10.2That the travelling parent give the non-travelling parent twenty (28) days written notice of the intention to travel including destination and duration of travel.

    10.3That the travelling parent shall provide to the non-travelling parent a copy of R’s ticket and itinerary not less than fourteen (14) days prior to travel and in the event that tickets are issued later than 14 days prior to travel within twenty-four hours of the issue of such ticket.

    10.4That the travelling parent shall provide to the non-travelling parent telephone contact details of the period of travel and shall organise for R to ring the non-travelling parent not less than once every seven (7) days.

    10.5That travel be limited to a Hague convention country other than for the purposes of transit from one flight to another.

  11. That in the event that the non-travelling parent holds R’s passport, such parent shall:

    11.1Provide to the travelling parent R’s passport for the purposes of purchasing airline tickets and accommodation within twenty-four (24) hours of a written request and the travelling parent shall return the passport after completion of the purchase of airline tickets and accommodation.

    11.2Provide to the travelling parent not less than seven (7) days prior to the date of travel R’s passport, and the travelling parent shall return R’s passport within twenty-four (24) hours of arriving back into Australia.

  12. The mother be allowed to attend school events to which parents are normally invited upon being invited to do so by either R and/or P.

Notation:

A.In the event P wants to spend time with her mother the father will encourage and facilitate those arrangements.

B.If required the father will facilitate changeover by taking R and/or P to and from the airport at G Town.

Independent Children's Lawyer

  1. That any previous parenting orders relating to the child of the relationship R born in, 2002 (hereinafter referred to as “R”) spending time with her mother be discharged and R is to spend time with her mother at times as agreed between the mother and R.

  2. That in the event of either child suffering a serious illness or injury then the parent with whom the child is with shall inform the other parent as soon as practicable and shall authorise any medical practitioner or hospital to release to that party all information requested by them.

  1. That each party have the option to travel with the children of the relationship namely P born in 2000 and/or R outside the Commonwealth of Australia for the purposes of a holiday upon the following conditions:

    a.That the travelling party give the non-travelling party twenty (28) days written notice of the intention to travel including destination and duration of travel.

    b.That the travelling parent shall provide to the non-travelling parent a copy of the children’s ticket and itinerary not less than fourteen (14) days prior to travel and in the event that tickets issue later than 14 days prior to travel within twenty-four hours of the issue of such ticket.

  2. That in the event that the non-travelling parent holds both or one of the children’s passports, such parent shall:

    a.Provide to the travelling parent P and/or R’s passport for the purposes of purchasing airline tickets and accommodation within twenty four hours of a written request and the travelling parent shall return the passport after completion of the purchase of airline tickets and accommodation.

    b.Provide to the travelling parent not less than seven (7) days prior to the date of travel P and/or R’s passport and the travelling parent shall return the passport within twenty four (24) hours of arriving back into Australia.

  3. That each of the parties shall do all such acts and things and sign all such documents as may be required to renew or cause to be issued a valid passport for P and/or R.

  4. In the event that either party refuses to provide consent for the issue of a passport for R and/or P within seven days of an application for passport having been submitted to that party, then the party requesting the issue of the passport is permitted to apply for the issue, and/or renewal of an Australian passport for R and/or P under the provision of s 11(4)(b)(i) (sic) of the Australian Passports Act 2005 notwithstanding that the other party has not provided their written consent.

  5. That P and R’s passport shall be held by the father subject to Order 3 and 4 above.

Key Legal Topics

Areas of Law

  • Family Law

Legal Concepts

  • Jurisdiction

  • Remedies

  • Consent

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