Charles and Hughes

[2016] FamCA 1010

FAMILY COURT OF AUSTRALIA

CHARLES & HUGHES [2016] FamCA 1010

FAMILY LAW – CHILDREN  - where discrete interim issue as to overseas travel with the father in school holidays at time when child is in any event to be with the father – where ongoing litigation over parenting issues – where final trial to be heard in January 2017 – where child enmeshed in parental conflict – where conflicting evidence from the parents as to the child’s wishes as to travel -where notwithstanding the child expressed views the ICL supports the travel – where ICL contends that child’s relationship with father seen as tenuous with further risk if travel not occur – where appropriate for child to travel – where appropriate for child to have liberty to communicate with the mother and family while away

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93
Goode and Goode: [2006] FamCA 1346
Keats [2016] FamCAFC 156
Marvel v Marvel [2010] FamCAFC 101
MRR v. GRR [2010] HCA 4
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Charles

RESPONDENT: Ms Hughes

INDEPENDENT CHILDREN’S LAWYER: Ms Hafey

FILE NUMBER: SYC 3333 of 2011

DATE DELIVERED: 25 November 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 14 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Samson

SOLICITOR FOR THE APPLICANT: Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Fermanis

SOLICITOR FOR THE RESPONDENT: Marriott Oliver Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

Orders

1. That the father is permitted to remove the child C born … 2003 from the Commonwealth of Australia for the period 18 December 2016 to 10 January 2017 inclusive for the purposes of an overseas holiday.

2. That the mother do all necessary things and sign all necessary documents in a timely manner as are reasonably on her part to facilitate the child’s travel as permitted.

3. That no later than 14 days prior to the date of departure the father shall provide to the mother a copy of flight bookings showing the date of departure and date of return and copies of the details of the accommodation arranged for the trip including location of that accommodation and contact numbers for such accommodation.

4. That the mother be at liberty to provide to the said child a mobile phone or other electronic device such as would facilitate the child having communication with the mother and/or her older sister or other members of her family at such times and on such occasions as the child may wish during the period of the child’s absence from Australia and such mobile phone or other device shall be paid for by the mother and remain at all times in the possession of the child.

5. That the father shall not remove from the child the mobile phone or other device provided for pursuant to the preceding order and the father shall at all times afford to the child, if requested by the child, privacy in her communications with the mother or her older sister or other members of her family.

6. That the mother or her nominee facilitate the child being delivered to the father at the McDonalds Family Restaurant Suburb G (or such other location or time as agreed in writing such writing to include SMS or email communication) at 10.00 am on Saturday 17 December 2016.

7. That otherwise all interim applications be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 3333  of 2011

Mr Charles

Applicant

And

Ms Hughes

Respondent

REASONS FOR JUDGMENT

1. The present interim parenting application is made in the context of an approaching final hearing in January 2017.

2. The applicant father by way of Application in a Case filed on 19 September 2016 seeks orders that would facilitate his overseas travel with the child C born in 2003 during the forthcoming Christmas school holiday period.

3. The father seeks to travel to overseas with the child for a period that approximates the first half of the school holiday period as provided for in current orders made in previous final proceedings on 7 April 2014.

4. Relevantly the existing orders provide:

   a)that the father and mother have equal shared parental responsibility for the subject children being C and her older sister B now aged 15;

   b)that the children live with the mother;

   c)that the child C spend defined times with the father unless otherwise agreed between the mother and father. Those defined times include alternate weekends during school term, half of the mid-year school holiday periods and half of the summer school holidays.

5. Relevantly for the present application the father is to have the first half of the forthcoming 2016/2017 school holiday period.

6. It is a common ground that the first day of the forthcoming school holiday period is 17 December 2016 and that one half of the school holiday period would see the child’s time with the father ended on 8 January 2017.

7. It is also common ground that in the event that the determination is that the father is able to travel with the child for the proposed holiday that there is no objection by the mother to the child returning to her care on 10 January 2017.

The father’s evidence

1. The father relied upon his affidavit filed on 19 September 2016.

2. Subsequent to orders made in June 2014, the child C travelled overseas to Europe with the father in the period from 17 June 2014 to 5 July 2014. He says there is no substance to the mother’s complaint that the child’s ability to contact the mother whilst absent overseas was restricted by the father.

3. Subsequently, the father continued to spend time with the child C as provided for in orders including a family trip away with the child to Fiji in the April 2015 school holiday period.

4. In the context of the present final proceedings a single expert report has been prepared by Dr Q (Exh “C”), some aspects of that report are pertinent to the present discrete application.

5. The father asserts that he first raised the prospect of his presently proposed trip with the mother in April 2016. At this time he says the mother raised no objection to the proposed trip. Thereafter planning for the trip was undertaken and the child C was actively involved in planning and to the father’s observation was excited about the prospect of travelling overseas.

6. The father says that in preparation for the trip the child arranged to attend refresher snow skiing lessons in the July 2016 school holiday period when she holidayed with the father and his family at R Town, New South Wales. Activities he says have also been pre-booked for the child to undertake whilst overseas. The child has also arranged to meet with one of her friends while travelling.

7. The father caused his solicitors to write to the mother’s solicitors about the proposed trip once bookings had been finalised by letter of 5 August 2016. In that correspondence the father asserts that he will facilitate communication between the child and the mother and her older sister whilst away. In the event that the mother refused to provide her consent for the trip, the father foreshadowed the present application.

8. On 11 August the father’s solicitors received communication from the mother’s solicitors informing that the mother did not consent to the trip for various reasons including some argument about when school holidays would start and that the child had expressed to the mother her wish not to travel overseas with the father and his family.

9. Of course notwithstanding whether there is to be overseas travel or not the child is to be with the father for the first half of the forthcoming school holiday period.

10. The father expresses concerns that the mother’s opposition to the trip is a continuation of what he perceives to be the alienation of the children against him and the mother seeking to align the children with her own wishes as to their time, if any, with the father. That issue, of course, is a matter for the final hearing in several months’ time.

The mother’s evidence

1. The mother in her Response to the father’s Application in a Case seeks orders that the Application in a Case be dismissed and that the child C spend time with the mother for the first half of the forthcoming Christmas school holiday period whilst the father is absent overseas and the child then spend the second  half of the school holiday period with the father upon his return.

2. The mother also seeks an order that the child not be left in the sole care of the father’s new wife Ms Charles whilst the child is spending time with the father.

3. The mother relies upon her affidavits filed on 26 October 2016.

4. The mother asserts that the proposed overseas holiday with the child C is not in the child’s best interests nor does it comply with the orders made in June 2014 (such non-compliance was based upon the mother’s views of the school holiday period that were resolved by concession during submissions).

5. The mother suggests that she has made arrangements with her extended family to spend a family Christmas on Sunday, 18 December 2016 and for her to also celebrate a belated fortieth birthday celebration with family on that day. The mother’s birthday was, in fact, earlier in the year.

6. The mother asserts that the first information she received about the proposed overseas trip was the letter from the father’s solicitor of 5 August 2016. The mother’s letter in response refusing to give consent made reference to the proposed family occasion on 18 December 2016 and the child’s reluctance to go on the trip “as she has not had positive experiences in the past”. It appears that these “experiences” related to the child’s asserted difficulties in communicating with the mother and her older sister whilst previously overseas with the father and on other occasions when with the father.

7. The mother asserts that the child is firm in her wish not to travel with the father and his family. Yet the mother asserts that she has endeavoured to encourage the child to travel on the trip.

8. It appears from the mother’s affidavit that the child expresses some disquiet as to her ability to contact the mother and her older sister whilst overseas. This issue can be discreetly overcome by the mother providing to the child an appropriate mobile phone that the child can use as her own while she is overseas with such phone to be provided to the child at the mother’s expense.

9. The mother further asserts that the child is “uncomfortable” around the father’s new wife and that she, Ms Charles, has imposed upon the child’s privacy. This will no doubt be an issue canvassed at final trial. The mother further asserts that the child has “increasingly demonstrated that she is fearful of her father and [Ms Charles]”. Yet it is common ground that the child continues to spend weekend and holiday time with the father.

The ICL

1. The ICL in submissions reminded the Court that the child C has at present a continuing meaningful relationship with the father in terms of time spent and that in any event the father will continue to be her father for years to come.

2. The ICL reflected that the mother and father have continually been in conflict and subjected both children to ongoing litigation in circumstances that the ICL considers that both parents have conducted themselves appallingly badly.

3. The ICL considers that there is significant risk to the child’s relationship with the father should she not go on the trip as opposed to any risk that may be presented to that relationship by the child engaging in the overseas holiday with the father and his family. The ICL further submitted that given the entanglement of the child in the parental conflict over such a long period of time it is almost impossible to discern whether her beliefs and views (as asserted by the mother) are independently held.

4. The ICL is supportive of the orders sought by the father

5. The ICL in submissions  made reference to various aspects of the single expert report by Dr Q that include:

   a)the mother’s dismissing of any positive benefit accruing to the children from a relationship with their father [31],

   b)that the child C’s relationship with her father is compromised and that the child “continues to be on the cusp of being unable to maintain a relationship with both parents” [69],

   c)that the child’s asserted rejection of her father was based on brittle complaints [70],

   d)that “neither party takes into account the role that they may have played in their relationship dynamics and to how they contribute to the conflict that has arisen between them”[81],

   e)that it was perturbing that the child C was not on interview able to identify anything positive about being in her father’s care [86],

   f)that observations of the child C with her father were inconsistent with the child’s disclosures about experiences within his family and may suggest that their relationship is not as broken or intolerable as asserted by the child [95],

   g)that “one is left wondering what hope there is for the future of this family to place the adult issues to the side and focus on the children’s needs” [96].

6. It is the ICL’s observation that notwithstanding her enmeshment in the parental conflict the child is nevertheless able to perform well academically and in her sporting endeavours and that perhaps these endeavours present a safe haven for the child from the parental conflict.

7. The child has informed the ICL that the planned holiday involves going to places that she would love to go but that she has reservations about being away for so long and does not wish to spend that much time with her father and his family. The last reservation being somewhat hollow as current orders provide that she will spend the same amount of time with the father and his family whether this time takes place overseas or not.

8. The ICL also expresses a concern that it is likely that the mother would be unable to contain her views should the father’s application be rejected in what she may see as a vindication of her position and thus further entangling the child in negativity about her father and his household.

Interim parenting

1. In Marvel & Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court, discussed the difficulties associated with making findings on contested evidence as follows:

   120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   121.…………In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   “In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”

   122. Later, at paragraph [100] their Honours amplified their comments and said:

   “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

THE LAW: The Statutory Pathway

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode: [2006] FamCA 1346. The High Court in MRR v. GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where:

   a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)],

   b)in interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].

   c)if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)]

1. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time [s 61DAA(6)].

   Best Interests:

   The Primary Considerations: s60CC(2)

2. The primary considerations are:

   a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

3. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

   The Additional Considerations:

4. Section 60CC(3) sets out the additional considerations:

   a)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;

   b)the nature of the relationship of the child with:

   (i) each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   c)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;

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

   d)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;

   e)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;

   f)the capacity of:

   (i) each of the child's parents; and

   (ii) 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;

   g)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;

   h)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;

   i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)any family violence involving the child or a member of the child's family;

   k)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;

   l)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;

   m)any other fact or circumstance that the court thinks is relevant.

5. By reason of the discrete issue for determination much of the statutory pathway is of little or no assistance in the context of this present application.

6. There are, of course, concerns as to the child’s relationships with both parents in that they are enmeshed in the ongoing conflict between the parents. Reference is made above to what amounts to the subject child’s relationship with the father being “tenuous”. It is the view of the ICL that the child’s relationship with the father is important and there is no issue that the child continues to have regular time with the father and, in particular, with the father in his household. There are significant factual issues for determination in the context of the final trial looming in a few months’ time when this aspect of the primary considerations will be dealt with in detail.

7. In the context of this application it seems important to the ongoing relationship between the child and the father that the father be permitted to take the child for the proposed holiday being an event in respect of which the child has been engaged in the planning of for many months. It is the view of the ICL that notwithstanding the child’s views that regrettably reflect the views of the mother, the child should travel with the father on the proposed holiday. The reasons for the ICL’s position is referred to above.

8. It is also necessary to consider the protection of the child from psychological harm. The ICL is of the view that should the Court prevent the child from travelling the mother will use that outcome as a tool to strain the child’s relationship with the father further and see the result as a vindication of her position.

9. The child’s views are referred to above but as contended by the ICL they are expressed in the context of the child’s primary carer clearly having a view that the child’s ongoing relationship with the father has nothing to offer the child. It is clear that the child is significantly enmeshed in the ongoing conflict between these parties since 2011 when at that time the child was only seven years of age.

10. The nature of the child’s relationship with the parents is discussed above and a detailed consideration of those relationships will be undertaken in the context of a final hearing. There is no doubt that the child is caught between two parents that in the view of the ICL have little reflective capacity for the welfare of their daughter or her best interests.

11. Considerations as to the parents’ obligations to maintain the child and as to their engagement in long-term issues relating to the child are of little utility in the context of this application.

12. The only change proposed by the father is that his school holiday time with the child for the block period provided by the orders in 2014 will be spent overseas and not in the southern suburbs of Sydney where he resides. The mother’s proposal at this late stage is that the child not travel with the father notwithstanding bookings have been made and paid for and that the arrangements for school holiday time be changed so that the child will spend the remainder of the school holiday period in January in Sydney with the father upon the return from holidays if indeed he travels. There is no evidence as to the availability of the father who is in employment to be on leave at that time.

13. There is no question as to the practical difficulty and expense of the child spending time or communicating with both parents. Should the child travel with the father arrangements can be made for the child to be equipped by the mother with a mobile phone or other electronic device that will facilitate the child having communication with the mother and the child’s older sister on such occasions and at such times as the child wishes.

14. Questions of parental capacity and the parent’s attitude to the child and their responsibilities of parenthood are significant issues for final hearing but not in the context of this interim application.

15. There is no evidence of family violence and no evidence of any family violence order.

16. Whether the child travels with the father and if not in what circumstances that transpires will no doubt occupy the Court at final hearing and have some impact on the final determination.

17. Having regard to the discussion above and the brief consideration of the best interest factors and being mindful of the submissions by the ICL in all of the circumstances it is considered appropriate that the child spend time with the father and his family overseas as proposed by the father.

18. Otherwise an order should be made so as to facilitate the child’s ability to communicate with the mother and her older sister whilst absent overseas.

19. There is no evidence adduced by the mother to support on an interim basis the order she seeks in relation to the father’s wife. No doubt such issue will be ventilated at final hearing.

20. Orders will be made accordingly.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 November 2016.

Associate: 

Date:  24 November 2016