FEDERAL CIRCUIT COURT OF AUSTRALIA
| CORLEY & PETRIE | [2019] FCCA 2461 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – living arrangements and time – Men’s Behaviour Change Program Referral – sole parental responsibility to mother – Airport Watch List – domestic violence – separation before birth of child – best interests of the child. |
| Legislation: Australian Passports Act 2005 (Cth), ss.7 and 11 |
| Cases cited: AMS v AIF (1999) 199 CLR 160 |
| Applicant: | MR CORLEY |
| Respondent: | MS PETRIE |
| File Number: | MLC 5458 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing dates: | 30 April, 1 May, 20, 21, 22 & 23 August 2018 |
| Date of Last Submission: | 23 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 October 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms Harris |
| Solicitors for the Respondent: | Mitchell Family Law |
ORDERS
All prior parenting orders in relation to X, born … 2015 (X) be discharged.
Parental Responsibility
The Respondent Mother, Ms Petrie (Mother), have sole parental responsibility for X including but not limited to X's education, X’s health and the obtaining of a passport without the written consent of the Applicant Father, Mr Corley (Father) and that the Mother be at liberty to produce a copy of these Orders by way of such authorisation.
The Mother be at liberty to provide a copy of these Orders to any schools, medical practitioners and government agencies applicable to X.
In relation to long-term decisions the Mother is required to make in relation to X, the Mother shall do the following prior to making such a decision:
(a)The Mother shall provide the Father with 14 days' notice in writing (by email) of any such proposed decision; and
(b)The Mother and the Father shall make a genuine effort to come to a joint decision about such issue; and
(c)If no agreement is reached between the parties within the 14 days provided for in Order 4(a), the Mother shall make the final decision about such issue and provide the Father with written confirmation of the decision made (by email) within a further period of 14 days.
Living Arrangements and Time X spends with the Father
X live with the Mother.
X spend time and communicate with the Father as follows:
During Term Time
(a)Commencing 18 October 2019 until X starts primary school in…
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CaseChat Overview and Summary
The court was required to determine issues relating to parental responsibility, the child's living arrangements and time spent with each parent, the father's completion of a Men's Behaviour Change Program, interstate and overseas travel, and the placement of the child on the Airport Watch List. Additionally, the court needed to make orders regarding the child's passport and impose restraints on both parents concerning social media and discussions about the proceedings.
The court found the Father to be a dishonest and unreliable witness, preferring the evidence of the Mother and her witnesses. The court noted the Father's history of domestic violence, breaches of intervention orders, and his dishonesty regarding child support payments. Consequently, the Mother was granted sole parental responsibility for X, with specific provisions for the Father's involvement in long-term decisions. The court also made detailed orders regarding X's living arrangements and time with the Father, including provisions for communication and holiday periods. Crucially, the Father was ordered to complete a Men's Behaviour Change Program, with his time with X suspended if he failed to comply.
The court made extensive orders, including granting the Mother sole parental responsibility for X, establishing a detailed schedule for X's time with the Father, and ordering the Father to complete a Men's Behaviour Change Program. The Father was also restrained from removing X from Australia, and the child was placed on the Airport Watch List. The Mother was permitted to apply for X's passport and travel internationally with X. Further orders included restraints on social media posting and discussions about the proceedings, and the establishment of a communication app for the parents.
Orders
Orders of the court
1.
All prior parenting orders in relation to X, born … 2015 (X) be discharged.
Parental Responsibility
2.
The Respondent Mother, Ms Petrie (Mother), have sole parental responsibility for X including but not limited to X's education, X’s health and the obtaining of a passport without the written consent of the Applicant Father, Mr Corley (Father) and that the Mother be at liberty to produce a copy of these Orders by way of such authorisation.
3.
The Mother be at liberty to provide a copy of these Orders to any schools, medical practitioners and government agencies applicable to X.
4.
In relation to long-term decisions the Mother is required to make in relation to X, the Mother shall do the following prior to making such a decision:
(a) The Mother shall provide the Father with 14 days' notice in writing (by email) of any such proposed decision; and
(b) The Mother and the Father shall make a genuine effort to come to a joint decision about such issue; and
(c) If no agreement is reached between the parties within the 14 days provided for in Order 4(a), the Mother shall make the final decision about such issue and provide the Father with written confirmation of the decision made (by email) within a further period of 14 days.
Living Arrangements and Time X spends with the Father
5.
X live with the Mother.
6.
X spend time and communicate with the Father as follows:
During Term Time
(a) Commencing 18 October 2019 until X starts primary school in 2021:
(i) Each alternate Friday from 3:00 pm until Sunday at 4.00 pm;
(ii) At any other time as agreed in writing (email) by the parties.
(b) From when X starts primary school in 2021:
(i) Commencing 29 January 2021 and during each school term, each alternate Friday from the time when X finishes school (or 3:00 pm) until Sunday at 4.00 pm;
(ii) Commencing 2 February 2021, and during each school term, each Tuesday at 6.30 pm the Father shall be able to communicate with X by Skype or other video call medium for a period of up to 30 minutes;
(iii) At any other time as agreed in writing (email) by the parties.
During Holiday Time
(c) From when X is in three-year-old kindergarten in 2019, during the school term holidays that are two weeks or more in duration, the Father spend time with X on the alternate weekend he would normally spend time with X during the school term but extending by one night until seven nights is reached, as set out below:
(i) Three-year-old kindergarten in 2019 and four-year-old kindergarten in 2020: Friday from 10:30 am until Sunday at 5:00 pm (2 nights);
(ii) Prep in 2021: Friday from 10.30 am until Monday at 3:00 pm (3 nights);
(iii) Grade 1 in 2022: Friday from 10.30 am until Tuesday at 4:00pm (4 nights);
(iv) Grade 2 in 2023: Friday from 10:30 am until Wednesday at 4:00 pm (5 nights);
(v) Grade 3 in 2024: Friday from 10:30 am until Thursday at 4.00pm (6 nights);
(vi) Grade 4 in 2025: Friday from 10:30 am until 4:00 pm the following Friday (7 nights).
(d) From when X starts Grade 5 in 2026, X is to spend time with the Father during school holidays as follows:
(i) For one half of the Victorian first term school holidays being:
A. The first half in 2026 and each alternate year thereafter;
B. The second half in 2027 and each alternate year thereafter;
(ii) For one half of the Victorian second and third term school holidays and the long summer school holidays, with the Father and the Mother to agree as to which half and in the absence of agreement the Father to have the first half in even years and the second half in odd years.
7.
For all school term holidays during kindergarten, primary and secondary schooling, if the Father's time on the Friday commences on the last day of the school term, the Father's time shall start at the time X finishes kindergarten or school.
8.
At any other time as agreed in writing (email) by the parties.
9.
The Father's time with X provided for in Orders 6(a) and 6(b) is suspended during the school holiday periods provided for in Orders 6(c) and 6(d).
Special Days
10.
Commencing 24 December 2020 and each alternate year thereafter, the Father shall spend time with X over Christmas from 12:00 pm on Christmas Eve (24 December) until 12:00 pm on Boxing Day (26 December).
11.
The Father shall spend time with X each Father's Day from 11.00 am until 4.00 pm that same day if X would not otherwise be in the Father's care pursuant to these Orders.
12.
In the event that Easter does not occur during the school term holidays, the Father shall spend time with X over Easter from 12:00 pm on Good Friday until 12:00 pm on Easter Monday in even numbered years.
13.
Commencing 27 October 2019 and on each alternate year thereafter up until when X turns 12 (2027), the Father shall spend time with X on her birthday at the following times:
(a) When X's birthday falls on a Saturday or Sunday when X is usually with the Mother, the Father shall spend time with X from 11.00 am until 4.00 pm.
(b) When X's birthday falls on a weekday during the school term, the Father shall spend time with X from when X finishes kindergarten or school until 6.00 pm on the same day, increasing by 1 hour each year alternate year until 9.00 pm is reached in 2025.
14.
From when X turns 13, X shall decide where she should spend her birthday. If X chooses to spend her birthday with the Father, the time spent with the Father shall be pursuant to Order 13. Both parents can communicate with X over the phone (or another agreed means of communication) on her birthday.
15.
At other times as agreed between the parties in writing (email).
16.
The Father must give the Mother at least 24 hours' notice in writing (email) if he does not intend to spend time with X in accordance with Orders 6, 7 and 10 to 14.
17.
The Father's time with X pursuant to Order 6 is suspended at the following times:
(a) Mother's Day from 11.00 am until 4.00 pm.
(b) In the event that Easter does not occur during the school term holidays, from 12:00 pm Good Friday until 12:00 pm Easter Monday in odd numbered years.
(c) For Christmas commencing 24 December 2019 until 12:00 pm on 26 December 2019 and each alternate year thereafter.
(d) X’s birthday commencing … 2020 and on each alternate year thereafter up until when X turns 12 (2027) at the following times:
(i) On a Saturday when X is usually with the Father, the Father's time be suspended from when X finishes kindergarten or school on the Friday until 1.00 pm on the Saturday;
(ii) On a Sunday when X is usually with the Father, the Father's time shall be suspended from 11.00 am until 4.00 pm.
Changeovers
18.
That for the purposes of Orders 6, 7 and 10 to 14 and unless agreed otherwise in writing (including by email and text message):
(a) All changeovers (inclusive of kindergarten and school term holidays) are to take place at the location of X’s day program (inclusive of X’s childcare centre, kindergarten, school and school holiday program) on weekdays (i.e. Monday to Friday) and on weekends (i.e. Saturdays and Sundays) at the ticket office on the ground floor of D Train Station.
(b) In the event that the Father does not attend for collection of X at the nominated times, the Mother and/or X shall only be required to wait for a period of a further 30 minutes after which the contact time will be deemed cancelled.
Husband to Complete Men’s Behaviour Change Program
19.
The Father is to forthwith enrol in, attend and complete a Men’s Behaviour Change Program recommended by Mr E, Family Advocacy and Support Service representative of the Men’s Referral Service, located at the Family Advocacy and Support Service, Owen Dixon Commonwealth Law Court Building, 305 William Street, (Telephone contact:1300 766 491).
20.
The Father is to provide proof of attendance and completion of the Men’s Behaviour Change Program to the Wife by 30 November 2020.
21.
In the event that the Father does not comply with Orders 19 and 20, X’s time with the Father pursuant to Orders 6 to 15 of these Orders is suspended from 1 December 2020 until the Father has complied with Orders 19 and 20.
Interstate and Overseas Travel
22.
The Mother be permitted to travel with X within Australia and overseas for a period of up to three weeks at a time each year, except for Easter when X is scheduled to spend time with the Father (pursuant to Order 6(d) or Order 12) or Christmas Eve, Christmas Day and Boxing Day (pursuant to Order 10), provided that the Mother provides to the Father the following information in writing not less than 28 days before the intended date of travel:
(a) X's itinerary, including departure and return dates;
(b) X's return airline tickets (if applicable); and
(c) For overseas travel, a contact number for X.
23.
X is to spend time with the Father for make-up time for one weekend in addition to Order 6(a)(i) or Order 6(b)(i) in the month following the time X is away with the Mother (pursuant to Order 22). The Mother is to provide to the Father in writing not less than 28 days before the intended date of travel, a minimum of three alternative make-up times when X is ordinarily with the Mother for the Father's selection. In the event that the parties are unable to reach an agreement, within a period of 14 days prior to X travelling with the Mother, the Father forfeits the make-up time with X.
24.
After X turns 13, the Father be permitted to travel within Australia with X for a period of up to three weeks at a time once a year, except during the school term when X is scheduled to spend time with the Mother over Easter (pursuant to Order 17(b) or otherwise), Christmas Eve, Christmas Day and Boxing Day (pursuant to Order 17(c)) and X's birthday (pursuant to Order 17(d)), provided that the Father provide to the Mother the following information in writing not less than 28 days before the intended date of travel:
(a) X's itinerary, including departure and return dates;
(b) X's return airline tickets (if applicable);
(c) An address and contact number for X.
25.
X is to spend time with the Mother for make-up time for one weekend on a weekend when X is usually with the Father (pursuant to Order 6(a)(i) or Order 6(b)(i)) in the month following the time X is away with the Father (pursuant to Order 24). The Father is to provide to the Mother not less than 28 days before the intended date of travel, a minimum of three alternative make-up times when X is ordinarily with the Father for the Mother's selection. In the event that the parties are unable to reach an agreement, within a period of 14 days prior to X travelling with the Father, the Mother forfeits the make-up time.
Airport Watch List
26.
The Father, Mr Corley born … 1981, his servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send X, born … 2015 (Child) from the Commonwealth of Australia. This order ceases to have effect two years after the date on which it is made.
27.
The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders.
28.
The Court requests that the Australian Federal Police place the name of the Child on the Airport Watch List at all points of international arrivals and departure in Australia for the purpose of preventing removal of the Child from Australia in breach of these Orders. This Order ceases to have effect two years after the date on which it is made.
29.
The Father, his servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the Child from the Commonwealth of Australia.
30.
For the purposes of Orders 28 and 29 the Mother, Ms Petrie born … 1980, is permitted to remove the Child from the Commonwealth of Australia. AND IT IS REQUESTED THAT the Australian Federal Police permit the Child to depart the Commonwealth of Australia with the Mother, notwithstanding that the Child's name is on the Airport Watch List.
Passports
THE COURT DECLARES THAT:
31.
Pursuant to ss.7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the Father to enable the child of the relationship X, born … 2015 to obtain an Australian passport to travel internationally, the Court makes the following orders:
IT IS ORDERED BY THE COURT THAT:
32.
The Mother of the child X, born … 2015 be permitted to apply for an Australian passport to enable the Child to travel internationally notwithstanding that the Father of the Child has not signed the passport application form and furthermore the Child be permitted to travel internationally without the permission of the Father.
33.
The Mother shall retain control of the Child’s passport until X is 18 years old and the Mother shall provide the Father with a copy of the Child's passport.
34.
The Father, his servants and/or agents be and are hereby restrained by injunction from applying for Country W residency or citizenship, or a Country W passport, or obtaining any passport or acceptable travel document or visa for any other country in the name of the Child, or with the name of the Child entered into or endorsed upon such a document, unless otherwise agreed by the parties in writing.
Restraints on the Parents
35.
Each of the Father and the Mother are hereby restrained by injunction from knowingly posting any photos of X on social media sites that allow people other than the parties' family and friends to view the photos without the written consent of the other party.
36.
Each of the Mother and the Father are hereby restrained by injunction from:
(a) Discussing these proceedings with X or in the presence of or hearing of X.
(b) Denigrating, abusing, belittling, insulting, denigrating or rebuking the other parent to X or within her presence or hearing.
(c) Knowingly allowing any third party to act in non-compliance with this Order.
Parents to Provide Information
37.
The Mother shall obtain, utilise and maintain a family account with an online parenting application (Parenting App), which the Mother and Father shall use to communicate with each other in regard to X. The Mother shall establish the account and invite the Father to join within 7 days of these Orders being made.
38.
The Mother and Father, and not their agents, representatives or any other person acting on their behalf unless otherwise agreed by the parties, are to communicate about matters solely and exclusively with respect to X through text message, the email addresses that were established for communications between the parties and the Parenting App.
39.
Each party shall keep the other informed of any change of telephone/mobile and email address within 24 hours of such change and thereafter keep the other parent up to date with any subsequent changes as provided for in these Orders.
40.
Each parent shall inform the other as soon as practicable of any significant illness or injury requiring hospitalisation suffered by X that occurs whilst X is in their respective care, along with the names of any treating medical, dental or allied health professional so that each parent may liaise with the same.
Miscellaneous
41.
The Father be authorised to request from the Principal of any kindergarten or school attended by X copies of school reports, newsletters, event notices, school photographs and the like at his respective cost. AND IT IS DIRECTED that either parent be at liberty to produce a copy of these Orders to X's kindergarten or school, by way of such authorisation.
42.
Both parties be at liberty to attend X's kindergarten or school events including, but not limited to, parent teacher interviews and other events organised by the kindergarten or school.
43.
Notwithstanding that the Mother has sole parental responsibility for X, each parent is authorised to speak with any of X's treating medical or health professionals from time to time, including any treating specialist(s) as to X's diagnosis, prognosis and treatment. AND IT IS DIRECTED that the either parent be at liberty to produce a copy of these Orders to X’s treating health professionals, by way of such authorisation.
44.
All extant applications are otherwise dismissed.
45.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Father arrived in Australia in … 2012[4] and the parties commenced cohabitation in … 2013. The Mother sponsored the Father in obtaining from the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Department of Immigration) a partners’ visa. The Mother wrote an emotional and heartfelt reference in support of the Father’s partner visa application. The Mother’s reference was a personal and detailed history of her relationship with the Father[5]. Mr A also provided a Statutory Declaration in support of the Father’s partner visa application[6]. The parties married on … 2014.[4] Father’s Affidavit, filed 16.6.16, at [1].[5] Father’s Affidavit, filed 2.11.16, Annexure “A”.[6] Ibid., Annexure “B”. However it was not long before the Mother lost trust in the Father. It became apparent to the Mother that the Father was an unsuccessful businessman, was undermining her relationship with F and that he had an obsession with pornography. He also frightened her by committing domestic violence. The Mother separated from the Father on 27 July 2015 when he was overseas in Country W. After separation the Mother notified the Department of Immigration that the parties had separated as she was required to do, being the Father’s sponsor for his partner’s visa. The Mother and F moved out of the matrimonial home before the Father returned from Country W. At the time the Mother separated from the Father she was pregnant with X. The Father returned to Australia on … 2015. On 25 September 2015 by reason of the Father’s behaviour, the Mother was granted an Interim Ex Parte Intervention Order for the protection of herself and F from the Father (Interim Intervention Order). Between early … 2015 and … 2015 the Father formed a relationship with Ms J whom he met via the internet[7]. The Father then commenced a de facto relationship with Ms J after meeting Ms J for the first time on … 2015[8]. Ms J has two children from her former marriage, AA and BB. Ms J shares the care of and parental responsibility for AA and BB on an equal shared care basis with the children’s father[9].[7] Transcript T38:41-42.[8] Father’s Affidavit, filed 16.6.16, at [18].[9] Ibid., at [19]. X was born on … 2015, three months after the parties separated. X is now aged 3, nearly 4. X has lived with the Mother since she was born. On 12 January 2016 the Father was found guilty at the Suburb K Magistrates Court of breaching the Interim Intervention Order. No conviction was recorded and the Father was placed on a good behaviour bond for 12 months[10] (First Intervention Order Breaches). [10] Exhibit R22. On 21 March 2016 a final Intervention Order was made against the Father in the Suburb K Magistrates Court for the protection of the Mother and F (First Final Intervention Order). The Father did not attend the hearing. In … 2016 Ms J fell pregnant with the child B. Both the Father[11] and Ms J[12] said that the pregnancy was planned. In May 2016 the Father advised Mr A that he was moving from Melbourne to City L to live and that he was in a new relationship. [11] Transcript (20.8.19) T38:17.[12] Ibid., T117:32-33.