Collu and Rinaldo

[2010] FamCA 287

FAMILY COURT OF AUSTRALIA

COLLU & RINALDO [2010] FamCA 287

FAMILY LAW – CHILDREN – PARENTING - interim hearing - vary orders - with whom the child lives - travel outside Australia

Family Law Act (1975)

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) HC 04

APPLICANT: Ms Collu

RESPONDENT: Mr Rinaldo

FILE NUMBER: PAC 1204 of 2008

DATE DELIVERED: 31 March 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 31 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Curran

SOLICITOR FOR THE APPLICANT:

C/- Mr J Curran

Barrister-at-Law

COUNSEL FOR THE RESPONDENT: Ms Adams

SOLICITOR FOR THE RESPONDENT: Hamish Cummings Family Lawyers

Orders

1. That from an agreed time but by no later than 5pm on Monday, 5 April 2010 until an agreed time but no later than 5pm on Monday, 26 April 2010 the child … born … December 2005  shall live with mother.

2. That the father shall deliver the said child to the mother at Sydney Airport at a time to be notified by the mother to the father or his solicitors (bearing in mind that Monday, 5 April 2010 is a public holiday) specifying the time and location within the said airport at which the mother will collect the child.  Time should be provided to allow the mother to make a connection and board with the child to a destination in North Queensland.

3. That on Monday, 26 April 2010 the mother shall again notify the father of a specific time and location within the said Airport where she and the said child can be met so as to allow the father to collect the child.

4. That pending further order, the said child live with the father at all other times.

5. That pending further order, neither party seek to remove the said child from the Commonwealth of Australia nor in any way encourage, cause or assist any other person to do so.

6. That the Marshall and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

7. The Court requests that until further order the Australian Federal Police place the name of the child … born … December 2005, a male, on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the said child from Australia in breach of these Orders.

8. That the father answer specific questions contained in a letter of 1 February 2010 being numerated items (1) to (4) by close of business on Friday, 9 April 2010.

9. That the mother file and serve an application for final orders by no later than close of business on Tuesday, 13 April 2010.  Such application is to be forwarded to the Parramatta Registry of the Court, in triplicate and in the usual fashion as required when filing such applications, to the attention of Justice Collier’s Associate.

10. That the father’s legal representative file a response to an application for final orders by no later than close of business Tuesday, 13 April 2010. 

11. That the parties each file and serve a financial statement as prescribed by the Rules by close of business on Tuesday, 13 April 2010.

12. That the father produce such documents as are in his possession or control that deal with the following:

    a.His travel costs away from Sydney since 5 December 2008;

    b.The identity of any persons reimbursing him for such costs;

    c.All his travel records for travel since 5 December 2008 for all travel save and except travel to and/or from Dubai for the purpose of spending time with the subject child.

13. That the mother produce such documents as are in her possession or control that deal with the following:

    a.Her travel costs away from Sydney since 5 December 2008;

    b.The identity of any persons reimbursing her for such costs;

    c.All her travel records for travel since 5 December 2008 for all travel save and except travel to and/or from Dubai for the purpose of spending time with the subject child.

14. That both parties produce to the other such records and other documents in their possession or control including but not limited to income tax returns evidencing benefits received by them from any employment since 2007, 2008 and 2009 or such equivalent years in the event of the mother’s returns being filed in accordance with regimes of other countries.  

15. That both parties produce such records and other documents in their possession or control relating to any income derived from the sale of any shares or other investments or real or personal property since 5 December 2008.

16. That in the event the offer of employment to the mother in Qatar remains capable of acceptance as at the first day of the final hearing then the mother is to produce on the morning of the first day of the final hearing a copy of the document outlining that offer.  If such offer is withdrawn or in any way made incapable of acceptance, the mother is to notify the father’s solicitors immediately upon such information becoming apparent.

17. That the mother produce to the father as soon as possible copies of documents relevant to her current employment.

18. That the mother as soon as possible produce to the father a copy of all visas issued to the subject child in Dubai together with any documents in her possession or control in relation to the granting of such visas.

19. That the father make available to the mother by handing to her in an envelope such documents as he can produce in accordance with previous orders, when he delivers child to the mother at the airport as provided for in these Orders.

20. That costs of the parties incidental to court hearings of 2 December 2009; 1 and 12 February 2010; 19, 26 and 29 March 2010 be reserved to the trial judge.

1. That liberty be granted to either to restore the matter to the list in the event of any difficulty upon giving forty-eight hours’ notice. 

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1204 OF 2008

MS COLLU

Applicant

And

MR RINALDO

Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. This matter has now come before me on a number of occasions.  I made orders on 1 February 2010 regarding the mother not removing the child from Dubai except to travel to Australia.  On 19 March the matter was before me again, and on that occasion I adjourned it to 26 March for a hearing before Cohen J, who was on that date a sit in Parramatta.  Unfortunately, before 26 March, it was brought to his Honour’s attention that he may not be able to hear the matter as he was known to one of the potential witnesses who was on affidavit in the father’s case.

2. His Honour, therefore, indicated that he would not deal with the matter and the matter had to come back before me on that day, on a day in which I was dealing with a list.  Accordingly, the matter was not concluded on that day and has been adjourned to today.  I do not propose to set out a detailed history of the matter.  The dispute between the parties centres on their only child, a son.  This matter was the subject of a final hearing before Justice Stevenson.  Her Honour delivered judgment and made orders on 31 March 2009.

3. Her Honour’s orders had provided that the child should return to Australia.  If the mother also came to Australia, then the parties would have equal shared care of the child.  Otherwise, the child was to live with the father and spend specified time with the mother in Dubai. 

4. The mother appealed against her Honour’s decision and the matter was heard by the Full Court.  On 4 March 2010, their Honours of the Full Court made orders in respect of the appeal.  On that day, their Honours allowed the wife’s appeal from the orders of Stevenson J of 31 March 2009 and went no further other than to discharge her Honour’s orders.

5. Thereafter, on 25 March 2010 their Honours of the Full Court made further orders remitting the matter for hearing before a Judge other than her Honour and recommending expedition.  In accordance with that recommendation and acknowledging that this matter needs to be finalised for the sake of the child, and for the parties themselves, the matter has been fixed for hearing on 27April 2010.

6. On 26 March, I was able to make orders for the preparation of an updated family report and the filing of the parties’ documents.  A mention date has been allocated before his Honour Justice Watts on 15 April, to check the progress of the matter and to ascertain its readiness for hearing. 

7. On 26 March 2010 I indicated that I had formed an intention as to the orders I considered appropriate for the limited time between that date and the hearing, which was then just over one month away. 

8. On 26 March 2010 Mr Curran, as was his absolute right, said that he may wish to be heard further on those matters and certainly he wished me to deliver reasons.  I was not in a position to do so on that day and that is the reason that the matter now comes before me today. 

9. In addition to a determination as to what is to happen in respect of the child between now and the hearing, there has also been raised before me today, firstly, the issue of what I might call procedural matters, by means of a proposed minute of order that the mother has supplied and, in addition, Ms Adams for the father has raised the issue of material that she has sought from the mother to enable her to properly prepare the matter for hearing.

10. The material in this matter is voluminous.  The mother and father have each filed significant affidavits and applications.  The father’s application went to the child remaining in Australia.  The mother’s application initially went to her being entitled to relocate from one part of the Middle East to another, but I am assured that that application is now on hold. 

11. The situation is that these parties have, it seems to me, at times, both been prepared to step aside from strict compliance with Court orders in force at any particular time. 

12. I am not in a position to say if one party is more, as it were, responsible for these deviations than the other.  I am not able to say, without testing the evidence of each of the parties, that this is a situation where one party has deliberately sought to interfere with the other party’s time with the child.  What I am satisfied of is that there has not been compliance with orders at all times. 

13. We now know, clearly, that the matter is to be re-heard by virtue of the orders of the Full Court.  By virtue of their Honours’ orders, the only order that could presently seen to be in force were orders for the child to spend month about time with the mother in Dubai and the father in Australia.  Those were orders made by me on an interim basis on 18 June 2008. 

14. To my mind, with the hearing as close as it is, this is not a viable proposition.  The child is here in Australia and, in my view, it would be best for the child were he to remain in Australia until the hearing.  However, having said that, I am equally of the view that the child should spend as much time as he possibly can with his mother, so that there is no doubt that their relationship is maintained and so that there is a situation in place that, leading up to the hearing the child sees the mother, in effect, for as long a period of time as can be arranged.

15. It has been put before me, as I say, that there was some unilateral action by the father in not returning the child.  There were suggestions that one period of extended time was to balance the other, and they are the very matters upon which I decline to even endeavour to make a finding at this time.  The fact of the situation is that there is approximately one month before this matter is to be heard, the child is in Australia and the mother is coming to Australia, albeit she asserts at significant financial distress to her, but in my view, necessarily, so that the matter can be properly prepared for hearing.  In that regard, I am particularly concerned that the family consultant be given ample and proper time in which to prepare a family report that will assist the trial judge when this matter is heard.

The Law to be Applied

1. The order that I am going to make, albeit for a very limited time, is a parenting order. There are sections of the Act that I am required to take into account in making such an order. The first of those sections, so far as I am concerned, are the objects and principles set out in s 60B of the Family Law Act.  The objects (subsec 60B(1)) are:- (a) ensuring children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the interests of the child; (b) protecting children from harm; and (c) ensuring children receive adequate parenting. 

2. The principles are (subsec 60B(2)):- (a) that children have a right to know and be cared for by both their parents; and (b) children have a right to spend time on a regular basis and communicate on a regular basis with both parents.

3. The situation here is that, for whatever reason, the child has been with the father for a period of time in excess of what might be called the strict month and month about.  I am satisfied that that would indicate that the mother should be entitled to spend a considerable period of the time left prior to the hearing with the child and I will return to that shortly.

4. In making a parenting order I must consider the child’s best interests as the paramount consideration.  Section 60CC tells me how this is done.  Section 60CC(2) provides that there are two primary considerations; the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm.  That, to my mind, is a very similar balancing exercise as is required of me by the objects.  There are additional considerations.

5. I am not in a position at this stage to take into account any view expressed by the child (Subsec 60CC(3)(a)).

6. The nature of the relationship of the child with each parent (Subsec (b)) is to my mind, something which I can not explore in depth.  However, it seems to me that the child has spent time with both parents since my initial set of orders, on a regular basis, if not in strict accordance with the orders.  I am therefore, so far as my enquiry is concerned, not able to differentiate between the nature of the relationship of the child with each parent.

7. The willingness and ability of each of the child’s parents to facilitate a close and continuing relationship with the other (subsec (c) is something that, to my mind, appears marked by its absence on both sides. 

8. The likely effect of change (subsec (d)) - the change I would propose to make to the child’s situation is that between now and the hearing, he would spend a very significant portion of that time, in fact all but three or four days, with his mother, following her arrival in Sydney. 

9. The practical difficulty and expense of spending time with the child (subsec (e)) to my mind, in this particular case presents no problem.

10. So far as I am concerned, it is agreed that the father will deliver the child to the mother at Sydney airport, at the commencement of the period of time that he is to live with her.  It would be my view that the father would collect the child from the airport at the conclusion of the mother’s time with the child, that is at about 5 pm on 26 April, the day prior to the commencement of the hearing.  Exact times may well need be factored in and I am satisfied that both parties have a means of communication via, if needs be, the husband’s solicitors.  The mother certainly has established to my satisfaction that she has no difficulty whatsoever in using electronic forms of communication, for example, by internet, to communicate when she wishes to do so.

11. The capacity of the parents (subsec (f)). I make much the same comment that I made about the nature of the relationship.  On the material that I have, which is untested, it would appear to me that in the past, both parents have established a capacity to care for the child. 

12. The attitude to the child and the responsibilities of parenthood (subsec (i)) both parties in this case are staunchly taking the position that the child should be with them, and it seems to me that both of them are putting before the court that they are able to discharge the responsibilities of parenthood and, on the material before me, there is nothing to contradict that.

13. The next matter that I would take into account is the extent to which each parent has fulfilled, or failed to fulfil, responsibilities of a parent (S 60CC(4)).  In the circumstances of this case, other than saying the parents obviously can not agree and there clearly have been episodes in the past where either by agreement or otherwise, the orders that were made for specified times have not been adhered to, there is nothing further I would add.

14. The next subsection of importance is Section 61DA, which speaks of a presumption of equal shared parental responsibility.  I am not asked to make any order, as I understand it, concerning equal shared parental responsibility and, of course, it is a situation where if I were to make such an order, it is to be disregarded in a final hearing (S 61DB).  What I propose to do is make no order as to equal shared parental responsibility, leaving both parents with parental responsibility (subsec 61C(1)).  What I do propose to do, as I have said, is order that the time the child spends with his mother is to be time where he lives with her, and he will live with the father at all other times.  That is both before and after the child passes to the mother.

15. S 65DA then speaks of the requirement to consider the child spending equal or substantial and significant time with each parent.  I have not made an order for equal shared parental responsibility which is, perhaps, a usual trigger for that form of consideration.  However, the Full Court in Goode & Goode[1] made it very clear that that was not the only means by which a consideration of equal or significant and substantial time would be required to be made.  In my view, this is not a case where the short period between now and the hearing requires an equal division of time.  For the reasons I have endeavoured to set out, the mother will spend, by means of a live-with order, a far more significant portion of that time – that is from now until the commencement of the hearing – with the child, than will the father.

    [1] (2006) FLC 93-286

16. I am mindful of the recent decision of the High Court[2], which indicates that in looking at the time that is to be spent, either equal or, by inference, substantial and significant, I must take into account whether any such order I make is reasonably practical.  In this situation, and acknowledging that it has been put to me with real force by counsel for the mother that his client will be financially disadvantaged, I am satisfied that it is reasonably practicable for the mother to have the child with her in Australia from 5 April, and to be allowed to travel within Australia with the child.

    [2] MRR v GR (2010) HCA 04

17. When the matter was before Justice Stevenson, the mother had presented alternative propositions as to whether the child should live with her.  The first was that she remain where she was in the Middle East.  The second was, if she returned to Australia, that she would not return to Sydney.  Rather, she sought that she be allowed to live in northern Queensland, with her mother.  I would expect and anticipate that, with no restriction placed upon her as to where she stay or live in Australia during the period until the hearing (and this has been very properly and candidly put to me) she would propose to travel with the child to her mother’s home in northern Queensland.

Discussion and Conclusions

1. I am satisfied that, having regard to the matters with which I have sought to deal, that in all the circumstances it would be appropriate for me to order that the child live with the mother for the period 5 to 26 April, that the child be returned to the father on 26 April, with my intention as I have expressed to the parties, that during the hearing he would then be back at school.  I would propose to order that neither party remove the child from the Commonwealth of Australia and, in support of that, I would make an order for the child, pending further order, to be placed on, what I refer to as the “airport watch list”.  Those orders I will make shortly.

1. I then turn to what I might call procedural issues.  It will be necessary for the parties to file fresh applications so that their positions are clearly set out.  I propose that the appropriate way to achieve this would be to order the mother to file an application and the father file a response.  I will order that the parties file those documents by no later than close of business on 13 April, which is in accordance with orders already made for the filing of affidavits.

2. I was handed today, a minute of orders sought by the mother.  The document sought orders numbered 1 to 5 and contained an attachment.  I dealt with the matter by way of brief submissions from the legal representatives for each of the parties.

3. There was also raised by Ms Adams for the father the question of documents that she sought to obtain for the orderly hearing of the matter.

4. The first order sought on behalf of the wife for appearance today by telephone is, so far as is necessary, granted in retrospect.  There were a series of questions in that attachment to which I have referred, described as specific questions.  I am satisfied that they are questions that can and should be answered in accordance with the rules, and I will order that the father file and serve a response to the specific questions in accordance with the rules, i.e. verified, by 9 April 2010.

5. The next order sought was that each of the father and mother file affidavits or statements of financial circumstances, and I propose to so order.  There was then a question of the father disclosing certain documents.  So far as I am concerned, the first of those identified sets of documents related to his travel costs when away from Sydney since 5 December 2008.  To my mind, the husband should attempt to answer the enquiries and provide the documentation, on the basis that it does seem to be a part of his case as to what he can and can not afford in the future.  The identity and source of payment or reimbursement for such matters can also be complied with to the best of his ability. 

6. The travel documents sought under sub (c), to my mind, are relevant to both parties, save and except that I will not require the mother to produce documents in relation to her travel to and from Australia for the purpose of collecting the child.  It seems to me also, that the husband or father would be excused from production of similar records, that is, records that relate solely and with no side trips or deviations, to him travelling from Australia to Dubai and return, in respect of him spending time with the child.

7. There were then documents sought in relation to income and, again, I propose to make orders on a mutual basis as to what the parties should produce.  I would also require the parties, mutually, to comply with sub (e) in relation to income and receipts from any shares since the last date upon which the matter was heard by a single judge.  I acknowledge that the order that I make is such that it may be impossible for parties to comply with in every respect.  However, to my mind, as is the case with a notice to produce and a subpoena, a party can only produce a document of which he/she has possession or control. 

8. I have no trouble in reserving the costs on the dates specified in suggested order 5 to the hearing, and I will do so.

9. Ms Adams then raised this issue.  She sought a copy of the mother’s offer of employment in Qatar.  That was answered by the barrister for the mother, saying that that may not be relevant, that the offer may be withdrawn.  To my mind, there is something in that.  The order that I would propose to make would be that if the offer remains, as it were, open for acceptance, that the document must be produced.  If it is not open for acceptance, then production will not be required, but of course, that will not limit in any way, the right of those representing the father to cross-examine in respect of that situation.  I am satisfied that she should produce copies of relevant documents relating to her current employer.

10. The next of the documents sought were copies of the child’s visa and documents relating to the grant of that visa.  This was opposed by Mr Curran, on the basis that the visa was now, in effect, historical.  However, on balance, I accept what Ms Adams tell me, that the visa was required for whatever reason, relating to the laws of Qatar, to be renewed on a 12-monthly basis.

11. It may be of some importance, it may not, to ascertain the reasons that were given for renewal on each occasion.  Having said that, it may well be that the mother holds no copies of the documents that were completed relating to the renewal of the visa.  However, I propose to order that the visas themselves be produced, together with any documents relating to their grant, in the possession and control of the mother.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate: 

Date:  27 April 2010