FAMILY COURT OF AUSTRALIA
| CARLSON & FLUVIUM | [2012] FamCA 32 |
| FAMILY LAW – CHILDREN – where matter has a long and litigious history – where myriad factual issues in contention – not the role of a trial judge to determine every issue of fact or law raised at trial. FAMILY LAW – CHILDREN – credit issues –whether necessary to make findings of credit in parenting matters – where long-standing conflict between the parties –determination of contested facts is necessary to the statutory considerations – where neither party’s evidence is necessarily preferred – where neither party was a frank nor forthright witness. FAMILY LAW – CHILDREN – with whom a child lives – where parents in a highly conflictual and intractable dispute – where the Mother lives in Canada – where the Father lives in Queensland – where neither party contemplates moving from their respective home country – where the Father has been previously deported from Canada following a criminal conviction – where the Father cannot enter Canada without a pardon – where the Mother has the care of her two other children in Canada – where the Mother must also facilitate her oldest child’s time his father – where neither party is in employment – where the finances of both parties are significantly strained – where both parties depend upon social security welfare payments – not reasonably open for either party to relocate. FAMILY LAW – CHILDREN – with whom a child lives – separation of siblings – where the parties have another, younger child, not a subject child of these proceedings – where this second child was born some eight and a half months after separation – where child was born and has thus far been raised in Canada – where the Father has never met his second child – where this Court has previously declined to exercise jurisdiction in relation to this child – where the Mother has actively excluded the Father from his second child’s life – where Mother has demonstrated a complete unwillingness to and inability to facilitate a relationship between the Father and this child. FAMILY LAW – CHILDREN – with whom a child lives – where both parties assessed to have personality vulnerabilities and narcissistic traits – where the Father has a history of suicidality – where Father has a propensity to suffer an Adjustment Disorder – allocation of parental responsibility conditional upon Father undertaking psychotherapy. FAMILY LAW – CHILDREN – family violence – findings of abuse and family violence – presumption of equal shared parental responsibility does not apply – allocation of parental responsibility to reflect Orders that allow the subject child to spend virtually equal time with each parent for the next two years. |
| AMS v AIF (1999) 199 CLR 160 Collu & Rinaldo [2010] FamCAFC 53 Gelley (No 1) (1992) FLC 92-290 Handley and Stagg (2002) FamCA 206. Heath & Hemming (No 2) [2001] FamCA 749 Jurss & Jurss (1976) FLC 90-041 MRR v GR (2010) 240 CLR 461 Sigley &… |
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- Carlson & Fluvium [2012] FamCA 32
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- [2012] FamCA 32
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CaseChat Overview and Summary
The court was required to determine the best interests of the child, D, in circumstances where both parents exhibited personality vulnerabilities and narcissistic traits. Key legal issues included whether findings of credit were necessary in parenting matters, the application of the presumption of equal shared parental responsibility in the context of family violence, and the practicalities of allocating parental responsibility and time when neither parent could reasonably relocate. The court also had to address the separation of siblings and the Mother's demonstrated unwillingness to facilitate a relationship between the Father and their second child.
Kent J reasoned that a determination of contested facts was necessary to apply the statutory considerations for the child's best interests. Neither party's evidence was definitively preferred, with both being found to be neither frank nor forthright. The court noted the presumption of equal shared parental responsibility did not apply due to findings of family violence. The orders ultimately allocated parental responsibility to the Father for major long-term issues, while each parent retained sole responsibility for day-to-day matters when the child was in their care. The orders provided for the child to live with the Father, with significant time to be spent with the Mother in Canada, subject to stringent conditions on the Father undertaking psychotherapy. These conditions included authorising a psychiatrist to provide information regarding his therapy and submitting to further psychiatric examination, with the Independent Children's Lawyer playing a role in facilitating these processes. The court also made detailed provisions for travel arrangements, communication between parents and the child, and the registration of the orders in Canada.
Orders
Orders of the court
1.
As a condition of the Father having the benefit of any parenting Order for parental responsibility or for D FLUVIUM-CARLSON born … June 2006 (“D”) to reside with the Father as provided for in these Orders:
(a) The Father is to forthwith make arrangements to commence psychotherapy with a duly qualified psychiatrist to address the following issues:
(i) The Father’s response to the outcome of this litigation as reflected in these Orders and the Reasons for Judgment;
(ii) The Father’s vulnerability to suffer Adjustment Disorder;
(iii) Any features of enmeshment in the Father’s relationship with D; and
(iv) Such other psychiatric or psychological issues of the Father as identified by the treating psychiatrist;
(b) The Father is to authorise such treating psychiatrist to provide such information as to the Father’s therapy as may be required by Dr V (or any substitute of Dr V nominated by the Independent Children’s Lawyer in the event that Dr V is unavailable for whatever reason) for the purposes provided for in these Orders;
(c) The Father is to demonstrate, in the manner prescribed in these Orders, compliance with psychotherapy;
(d) The Father is to submit to further psychiatric examination for medico-legal purposes by Dr V (or any substitute for Dr V nominated by the Independent Children’s Lawyer) no later than 15 May 2012.
2.
The Independent Children’s Lawyer shall provide to the Father such assistance as the Father may reasonable request in identifying an appropriate psychiatrist able to undertake psychotherapy and the Independent Children’s Lawyer is authorised to publish to any prospective psychiatrist any of the documents referred to in Order 3 in seeking to obtain the services of a treating psychiatrist.
3.
For the purpose of these Orders, the Independent Children’s Lawyer is authorised, and requested, to provide to the Father’s treating psychiatrist and Dr V (or his substitute):
(a) Copies of the affidavits and reports of Dr V;
(b) A copy of the transcript of the evidence of Dr V (and it is directed that such transcript be made available by the Court to the Independent Children’s Lawyer);
(c) A copy of these Orders and Reasons for Judgment;
(d) Such other affidavit or other evidence in these proceedings as the Father’s treating psychiatrist or Dr V (or his substitute) may reasonably require;
but the provision of the above documents is no basis for any delay in the Father forthwith meeting the requirements imposed upon him in paragraph 1(a) of these Orders.
4.
The Independent Children’s Lawyer shall make arrangements to facilitate the provision by Dr V (or his substitute) of a report upon the Father to be obtained by the end of May 2012 addressing:
(a) Whether the Father has undertaken psychotherapy and the outcome or progress of such therapy;
(b) Whether there is any identifiable safety issue for the child D returning to reside with the Father on 30 June 2012;
(c) Such other matters as Dr V (or his substitute) considers necessary.
5.
The Independent Children’s Lawyer shall provide a copy of the report of Dr V (or his substitute) to the Father and the Mother as soon as reasonably practicable after it is received by the Independent Children’s Lawyer.
6.
In the event that the report referred to in Order 5 identifies safety issues for D returning to reside with the Father, the parties and the Independent Children’s Lawyer shall each have liberty to apply to list the matter for further consideration.
7.
In the event that no such safety issues are identified, D is to be returned to live with the Father no later than midnight on 30 June 2012, with both parties to be equally responsible for the cost of travel for D and an accompanying adult. The identity of the accompanying adult shall be agreed between the parties or, failing agreement, shall be one of either the Maternal Grandmother, the Mother, the Paternal Grandfather or the Paternal Grandmother.
8.
The Mother will not be deemed in breach of these Orders in respect of any occasion when D is returning from Canada should D’s return to Brisbane be delayed by circumstances outside of her control, including the following non-exhaustive factors:
(a) Weather conditions, including volcanic activity;
(b) Airline strike action; or
(c) Natural disasters.
9.
If the accompanying adult is either of the Mother or the Maternal Grandmother, then D is to be collected from the Arrivals section of the Brisbane International Airport by the Father or the paternal grandparents.
10.
If the accompanying adult is either of the Paternal Grandfather or the Paternal Grandmother, then changeover is to occur at the Toronto International Airport three (3) hours prior to the departure of the flight returning to Brisbane. The Mother is to ensure that the accompanying adult receives D’s Canadian passport at the time D is handed over at the airport.
11.
It is the responsibility of the Father to book the return flight which will leave Canada no earlier than 28 June 2012 and arrive in Brisbane no later than 30 June 2012. The Father is to provide notice in writing to the Mother of the details of the flight and evidence of a pre-purchased plane ticket by which D will travel from Toronto to Brisbane by no later than 1 June 2012.
12.
The costs of travel for D and the accompanying adult are to be borne initially by the Father, with the Mother to reimburse fifty percent of the cost within 45 days of the Father providing her with notice of the purchase of the flights.
13.
During D’s time in Canada during any periods provided for in these Orders, the Father shall communicate with D via web-based communication and for that purpose:
(a) The connection or method of connection of such web-based communication will be such system as required by the Mother provided that such communication is of no lesser quality than the Gmail communications appearing as Exhibits 7 and 9 to these proceedings;
(b) Such communication is to be at 9.00 am (Queensland time) on two (2) occasions per week to be nominated by the Father; and
(c) The Mother is to ensure that D is available to speak to the Father at 9.00 am (Queensland time) on … June 2012 and … June 2013, that being D’s birthday. This communication is to replace one of the two communications due to occur in that week as per Order 13(b) above.
Parental Responsibility
14.
Subject to Order (15) the Father shall have sole parental responsibility for D in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended) provided that each parent shall have, during all such time that D is in their respective care, sole parental responsibility in respect of issues that are not “major long-term issues”.
15.
During 2012 and 2013 and thereafter in respect of periods when D is spending time with the Mother pursuant to these orders the Mother shall have sole parental responsibility in respect of determining D’s education in Canada including which school D attends and in respect of D’s participation in Unicamp or other church-based activities in which the Mother and/or X and/or K participate.
16.
Each parent is to keep the other informed in writing by email, of any decisions made by that parent in the exercise by that parent of parental responsibility for any “major long-term issues”.
Co-Parenting Arrangements
17.
D shall live with the Father.
18.
D shall spend time with and communicate with the Mother as follows:
(a) Until his return to the Father on 30 June 2012 as provided for in paragraphs (7) to (12) of these Orders;
(b) For the period of six (6) months from 1 January 2013 until 30 June 2013, with D being permitted to travel to Canada to live with the Mother for the purpose of such time, with the parties to share equally in the cost of D’s travel for such visit;
(c) From the commencement of the Christmas school holiday period to return three (3) days prior to the commencement of the new school year, commencing in the Christmas holiday period for 2013 and each year thereafter;
(d) If the Mother can fund such visits, for the June-July two (2) week school holiday period in any year from and including 2014 with either D travelling to Canada for that period or the Mother having time with D for such periods in Australia at her election provided that the Mother gives the Father not less than 45 days written notice of her intention to have such time;
19.
During D’s time in Australia during any periods provided for in these Orders, the Mother shall communicate with D via web-based communication and for that purpose:
(a) The connection or method of connection of such web-based communication will be such system as required by the Father provided that such communication is of no lesser quality than the Gmail communications appearing as Exhibits 7 and 9 to these proceedings;
(b) Such communication is to be at 9.00 am (Queensland time) on a maximum of two occasions per week to be nominated by the Mother.
20.
For the purpose of D’s travel from Australia to Canada from 1 January 2013 and his return from Canada to Australia on 30 June 2013 and likewise with respect to such travel for the Christmas school holiday period in 2013:
(a) D is to travel with an accompanying adult the identity of whom is to be agreed between the Father and the Mother or, failing agreement, shall be one of the Father, the Mother, the Paternal Grandfather, the Paternal Grandmother or the Maternal Grandmother;
(b) The provisions in paragraphs (9) to (12) of these Orders with respect to changeover arrangements; booking and notice requirements; and meeting costs of travel apply save only that in this respect those provisions are to be read so as to refer to the year 2013 and with respect to the Christmas school holiday period from the Saturday immediately after the school year ends as the date of commencement until three days prior to the commencement of the next school year as the date of return.
21.
Commencing in 2014 with respect to the Christmas school holiday period travel and each Christmas holiday period thereafter the Father is to be responsible for the booking of D’s return flight and shall give notice to the Mother of the cost of such return travel and upon receiving the Mother’s payment of half of that cost shall be responsible for booking D’s return ticket.
22.
To remove any doubt, the costs of D’s travel to and from Australia and Canada for Christmas holiday periods are to be borne by the parties equally but the costs of any additional travel for mid-year periods as provided for in these Orders are to be met by the Mother.
23.
The Mother is to ensure that at all times when D is spending time with her in Canada that D has no interaction with the Mother’s father, Mr F, on an unsupervised (by the Mother) basis and that on no occasion does D reside overnight in any residence or other accommodation in which Mr F is present.
24.
The Father and the Mother shall do all acts and things reasonably required to cause, as soon as possible, these Orders to be registered in Ontario, Canada pursuant to the Children’s Law Reform Act 1999 (Can) or any other Canadian legislation providing for the registration of foreign Orders and for this purpose:
(a) The parties are authorised to publish to the relevant Canadian court or authorities these Orders and Reasons for Judgment and any other record of these proceedings as the Canadian authorities reasonably require for the purpose of such registration; and
(b) The parties are to share equally in any costs associated with such registration.
25.
Save in respect of the Orders of 17 November 2011 and 8 January 2012 all other parenting Orders be discharged and those Orders (as varied by these Orders) be discharged once their terms have been carried into effect.
26.
Each party including the Independent Children’s Lawyer has liberty to apply in relation to the operation or effect of these Orders.
27.
All other outstanding Applications be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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