Carlson and Fluvium (No 3)

[2010] FamCA 1044

FAMILY COURT OF AUSTRALIA

CARLSON & FLUVIUM (NO. 3) [2010] FamCA 1044

FAMILY LAW – CHILDREN – Where the mother seeks sole parental responsibility for the purposes of obtaining a passport for the child – Where it is in the best interests of the child to have a meaningful relationship with both parents – Sole responsibility granted to the mother on an interim basis – Intent of this Order is to allow the mother to obtain a Canadian passport for the child to travel to Canada in accordance with earlier Court Orders

Family Law Act 1975 (Cth)
APPLICANT:	Mr Carlson

RESPONDENT: Ms Fluvium

INDEPENDENT CHILDREN’S LAWYER: Ms Toomey, Solicitor

FILE NUMBER: BRC 9490 of 2008

DATE DELIVERED: 17 November 2010

PLACE DELIVERED:

Brisbane

In Chambers

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 9 November 2010

REPRESENTATION

SOLICITORS FOR THE APPLICANT: Mr Gray, Solicitor of Richard Gray and Associates appearing for the Applicant Father

COUNSEL FOR THE RESPONDENT: The Respondent Mother appearing by telephone (not legally represented)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Shaw, Solicitor appearing as town agent for the Independent Children’s Lawyer, Ms Toomey of Schultz Toomey O’Brien Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. Order (7) of the Order of this Honourable Court made 20 October 2010 be discharged.

2. The Mother have sole responsibility for the care, welfare and development of the child, D born … June 2006.

IT IS ORDERED THAT:

1. The Father’s Contravention Applications filed 22 June 2009 and 2 December 2009 be adjourned for hearing to 10.00 am on 30 November 2010 at the Brisbane Registry of the Family Court.

2. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Carlson & Fluvium is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9490 of 2008

MR CARLSON

Applicant

And

MS FLUVIUM

Respondent

REASONS FOR JUDGMENT

1. The parties are the parents of the child, D born in June 2006.

2. The Mother resides in Canada and the Father resides with the child in Australia.  An Order has been made for the child to travel to Canada to spend time with his Mother.  For this to be done the child’s Canadian passport has to be renewed and orders to this effect have been made.  To date the new passport has not issued.

3. On 9 November 2010 I reserved my decision on an application by the Applicant Mother that she be granted sole responsibility for the child to enable her to make the necessary passport application to the Canadian Consulate.  I reserved my decision to the 30 November 2010, but have decided to deliver my decision from Chambers to allow the Mother some time to obtain the passport prior to the next Court review of this matter on 30 November 2010.

4. By an Order of Federal Magistrate Howard dated 25 August 2009 the Father was granted sole responsibility of the child.

5. I made an Order on the 20 October 2010 that the parents have joint parental responsibility for the child. This was to enable the Mother to make the necessary enquiries from either the Canadian Consulate in Sydney or government departments in Canada.

6. The Mother presses ahead with her application that she be granted sole responsibility.  Her motivation for this is what she claims is the delay by the Father in obtaining the passport pursuant to previous Orders made for the child to spend time with her.  She says in the ordinary course a passport should issue within 14 days.

7. Parallel with the current application the Mother has filed a contravention application alleging three contraventions by the Father of Court Orders for the passport to be renewed.

8. Because of a late amendment to the contravention applications those contraventions have been adjourned for hearing to the 30 November 2010. 

Parental Responsibility

1. Section 61B of the Act is in the following terms:

   “61B   In this Part, “parental responsibility” , in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

   In a note to this section in the Butterworths Family Law Volume the observation is made:

   “Section 61B defines “parental responsibility” which is a term introduced by the Family Law Amendment Act 1995 to refer to the duties, powers etc possessed by parents (unless modified by court orders).  This term appears to be similar or identical to “guardianship” at common law, and equivalent to guardianship and custody under s 63E of the Act prior to the 1995 amendments.”

   I accept the accuracy of this notation.

2. Section 61C is in the following terms:

   “61C   Each parent has parental responsibility (subject to court orders)

   61C (1)         Each of the parents of a child who is not 18 has parental responsibility for the child.

   Note 1:         This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court.  See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.

   (2)                 Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents.  It is not affected, for example, by the parents becoming separated or by either or both of them marrying or
   re-marrying.

   (3)                Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).”

   [Underlining added]

3. Section 61D is in the following terms:

   “61D   Parenting orders and parental responsibility

   61D     (1)      A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibility or authority in relation to the 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 order.”

4. Section 61DA is in the following terms:

   “Section 61DA         Presumption of equal shared parental responsibility when making parenting orders

   61DA (1)       When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)                 The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   a.abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   b.        family violence.

   (3)      When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)      The presumption may be 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.”

5. In the present circumstances, although the Mother does not have the child in her care, I am satisfied that this is an appropriate case where she should be given sole parental responsibility principally for the purpose of obtaining a Canadian passport.  Once that has been obtained the Order may persist to allow the Mother to spend time with the child in Canada as provided for by earlier Orders of this Court.

6. It is something of an anomalous situation but I am guided by the principle that it is in the best interests of the child to have a meaningful relationship with both parents.  It is clear the child has a meaningful relationship with his Father as he has been in his care for some time.  It is important that the child have an ongoing relationship with the Mother and that was the clear intent of the Orders made for the Mother to spend time with the child in Canada.

7. At the present time the matter is at an impasse.  Further delay is not in the best interests of the child.  The passport of the child is required to give the orders efficacy.  If this can be done more efficiently by giving the Mother sole parental responsibility then that is a course that this Court should take.

8. The Mother’s ability to impact on the long term care, welfare and development of the child at a practical level is limited by virtue of the fact the child is living in another country in the care of his father.

9. The Independent Children’s Lawyer during the course of his submissions produced sections of the Canadian Divorce Act and the Canadian Passport Order.

10. So far as the Canadian Passport Order is concerned I note section 7(1) is in the following  terms

    “7(1)   Subject to subsections (2) to (4), when an applicant applies for a passport in respect of a child under 16 years of age, that child may be issued a passport if the applicant is

    a.        the parent of the child;

    b.the custodial parent, if the parents of the child are divorced or separated; or

    c.        the legal guardian of the child.

    (I note the Mother is a parent and by virtue of the orders I am about to make will also be the legal guardian.)

    (2)      No passport shall be issued to a child under 16 years of age where the parents of the child are divorced or separated and there is a court order made by a court of competent jurisdiction in Canada or a separation agreement the terms of which grant the non-custodial parent specific rights of access to the child, unless the application for the passport is accompanied by evidence that the issue of a passport to the child is not contrary to the terms of the court order of separation agreement.

    (3)      No passport shall be issued to a child under 16 years of age where there is a court order made by a court of competent jurisdiction in Canada or a separation agreement the terms of which grant the non-custodial parent specific rights of access to the child, unless the application for the passport is accompanied by evidence that the issue of a passport to the child is not contrary to the terms of the court order of separation agreement.”

    [Underlining added]

11. I am satisfied the only relevant Order of a Canadian Court is the Order remitting this matter back to Australia on the Father’s application pursuant to the terms of the Hague Convention.

12. Because of complications not relevant for present purposes, the substantive issue of the child’s long term residence is yet to be heard and determined on a final basis.  The Mother is unwilling to travel to Australia and does not have the necessary funds to be able to appear by an appropriate video link.

13. Subsections (2) and (3) of section 7 of the Canadian Passport Order do not appear to be relevant.

14. For reasons I have given I propose to make an Order altering the Order made on 20 October 2010 for the parents to have joint responsibility and instead replacing it with an order that, on an interim basis, the Mother have sole responsibility for the child’s care, welfare and development.

15. The clear intent of this order is to allow the Mother to obtain a Canadian passport for her son to be able to travel to Canada in accordance with the earlier Court Orders.

Outstanding Contravention Applications

1. The Mother’s contravention application is to proceed regardless of whether a passport is obtained.

2. The Father had filed contravention applications in June and December last year.  At the hearing before me on 9 November 2010 he sought that on the adjourned date of 30 November 2010 his contravention applications be heard.

3. I did not view them at that time as having any degree of urgency.

4. Upon a reconsideration I will allow the Father’s contravention applications to proceed on the adjourned date of the 30 November 2010 but I will deal with the Mother’s contravention application first before proceeding to a consideration of the outstanding contraventions filed by the Father.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 9 November 2010.

Associate: 

Date:  17 November 2010