CASSIDY & SIBLY

[2011] FamCA 933

FAMILY COURT OF AUSTRALIA

CASSIDY & SIBLY [2011] FamCA 933

FAMILY LAW – CHILDREN – interim orders – application by the mother seeking orders that the child be permitted to spend six months with her in Canada where she resides pending the delivery of judgment – where the child’s sibling also resides in Canada – where the matter has a long history, including Hague Convention proceedings in Canada – best interests – where it is likely that the disruption to the child’s residence will put his educational and emotional development at such a risk to outweigh the benefits of him spending time with his mother and sibling – mother’s application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – orders giving liberty to the parties to prepare brief written submissions in relation to reserved judgment if it is delivered prior to delivery of reasons in this matter.

Family Law Act 1975 (Cth) ss 60CC & 65DAA

Goode and Goode (2006) FLC 93-286

APPLICANT: Mr Cassidy

RESPONDENT: Ms Sibly

FILE NUMBER: DNC 570 of 2010

DATE DELIVERED: 1 December 2011

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 1 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Vanessa Farmer

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The mother’s Application in a Case filed on 16 September 2011 is dismissed.

1. IT IS DIRECTED that if final orders and judgment are delivered in the matter of Carlson & Fluvium (Action No BRC9490 of 2008) before the Honourable Justice Dawe’s judgment in this matter is delivered the parties are at liberty to provide brief submissions in writing on that case and its application to these proceedings PROVIDED THAT such written submissions are filed and served within fourteen [14] days of the delivery of judgment in the matter of Carlson & Fluvium and such written submissions may be filed by email to the Associate to Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 570 of 2010

Mr Cassidy

Applicant

And

Ms Sibly

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the determination in relation to the Application in a Case filed by the mother in September 2011 in which she sought interim orders in relation to the child R.  The proceedings concerning the eldest child of the parties, R, have been before me by way of final hearing this week.  When the matter of the Application in a Case filed by the mother was initially heard by me by way of interim hearing, it was adjourned for determination at the hearing of the trial.  I have since heard the evidence of the parties and their witnesses in relation to the final orders that are to be made, including hearing the evidence of the author of the family report concerning the children.

2. Proceedings relate to the eldest child of the parties, R, who was born in June 2005.  It is of significance that the parties also have a younger child, K, who was born in January 2010.  He is not the subject of the proceedings in Australia.  He was born in Canada, has always resided in Canada, and remains in Canada even though the mother has come to Australia for the hearing of these final proceedings. 

3. Another significant matter is that the judgment of the court in Canada, under the Hague Convention proceedings resulted in an order that the child R be returned to Australia (R having travelled from Australia to Canada with his mother in September 2009).  Following upon The Hague Convention proceedings in Canada the child R was ordered to be returned to Australia, and after other proceedings by way of appeal and stay proceedings actually returned to Australia in late January 2011.

4. The Application in a Case, which I am dealing with by way of interim order, is the application in which the mother seeks an order that the child be permitted to spend six months with his mother in Canada, and ancillary orders which would allow him to travel with his mother to Ontario after the trial but before the judgment is delivered. 

5. The provisions of the Family Law Act need to be taken into account in the context of the decisions of the Family Court of Australia, including the decision of Goode and Goode (2006) FLC 93-286. In this particular matter it is difficult to make full detailed comments considering the amount of evidence that has been heard without seeming to prejudge the matters which will need to be considered in particular all of the factors necessary to be considered in detail in the final judgment.

6. I take into account the history of the proceedings, the history of the relationship between the children, and the times in which the children and the parties have lived in either Australia or Canada.  The significant factor is that the parties have spent some time in both countries.  The child has spent some time either living or visiting (depending upon which party you believe) in both countries.  As previously indicated, the younger child was born in Canada in January 2010 and has remained in Canada since that time in the care of the mother, although he has been visited by the father.

7. I take into account in particular the material which is before the Court in the final proceedings by way of judgments of the Canadian courts in relation to the child R; in particular the finding that at the time the child was removed from Australia by his mother he was habitually resident in Australia, and that the removal by the mother from Australia was not with the father’s consent.  I also take into account the history of the proceedings and the actions which both parties took prior to the father arranging for the return of the child to Australia in late January 2011. 

8. The significant factors to be considered, of course, are those set out in section 65DAA and section 60CC. In these proceedings I am satisfied that even if the presumption of equal shared parenting applied, there are significant factors, and in particular reasonable practicality and the best interests of the child R, which would not make it appropriate by way of interim decision to require the parties to have equal shared parental responsibility, and thus bring about the necessity to consider substantial or significant time. It is, however, appropriate in any event to consider what arrangements could be made to ensure that the child spends as much time with each parent where possible, and at the same time ensure that the arrangements are in his best interests. In particular, section 60CC, the primary considerations, emphasise the meaningful relationship between the child and each of the parents. This is not a case where it is necessary to place significant weight upon any allegations of risk to the child in either parties’ care, and that is conceded by both of the parties before me. There is no allegation in particular about the mother placing the child at any significant risk which would require to be considered in these interim proceedings.

9. What is a significant factor, however, is the history of the arrangements in relation to the child R, and the background to the proceedings before this Court, namely, the Hague Convention proceedings in Canada.  The orders for the child’s return which brought about the return of child took some time to implement, but since the end of January this year the child has been residing with his father in Darwin and attending the local school.  He has progressed well at that school, and there are before me significant positive reports concerning his welfare.

10. I also take into account the significant report of the family consultant, Mr V, which deals with the matters relating to the child’s relationship with each of his parents.  There is in the report careful consideration of many of the matters to which the Court must have regard, and in particular deals with the relationship between both the mother and the child and the father and the child.  The Family Consultant also gives consideration to the mother’s proposal that the child spend six months in Canada and six months in Australia.  Paragraph 76 of the report says:

    Regarding the mother’s six-month proposal, it seems to have emerged from a sense of exasperation about finding a workable solution and a way of bringing [the child] back into a reasonable contact with his brother.  In my view, such a six-month period for [the child] in Canada would have the potential to emotionally confuse him and [the younger child], as he would most probably be put under enormous emotional pressure from both parents.  It could also adversely affect his schooling, despite [the mother’s] confidence suitable education compensation could occur.  It does seem he has some educational deficits currently needing address.

11. Mr V was also asked questions about that material in his oral evidence.  I take that into account and also take into account the sensitivity which is described in the Family Report being the child’s sensitivity to the reaction of his parents. 

12. This is only an interim decision and should not be considered to be an indication of final orders that might be made, but I consider the disruption to the child’s residence for six months or for any lengthy time in Canada, pending the decision of this Court in Australia, is likely to put the child’s educational and emotional development at such a risk as to outweigh the obvious significant benefits which might arise from him spending more time with his mother, extended family, and in particular his brother K. 

13. I therefore consider that it is not in his best interests to risk that possible significant damage to the child’s development.  I do that in the context of the past history of the matter and the circumstances in which the child has moved from Australia to Canada and from Canada back to Australia. 

14. On that basis, therefore, I dismiss the mother’s application for interim orders.  I do that on the basis that I have already made orders providing for the child to spend time with his mother from this Friday 2 December until Friday 9 December, at 6.00 pm.  That is an order that is still in place.  I understand the mother is not intending to stay.  The mother has capacity to remain in Australia as far as visa authorities are concerned, having permanent residence in Australia, but she has indicated other difficulties about continuing to reside in Australia.

15. The application in relation to the further orders, and in particular for the child to be removed from Australia, is dismissed.

16. The orders remain in place which restricts the child R’s removal from Australia pending any final orders.

17. I also made some indications prior to the matter concluding this morning that I would give consideration to any further judgment in the matter of Carlson & Fluvium.  Subject to what the mother and Ms Farmer might tell me, I am proposing to direct that if final orders and judgment are delivered in Carlson & Fluvium before my judgment in this matter, then the parties be at liberty to provide brief submissions in writing on that case and its application to these proceedings, provided such written submissions are filed and served within 14 days of delivery of the judgment in Carlson & Fluvium, and further directing that such written submissions may be filed by email to the Associate to Justice Dawe. 

18. The orders that are in place will remain subject to any agreement reached by the parties about handover.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 1 December 2011.

Associate: 

Date:  13 December 2011