FAMILY COURT OF AUSTRALIA
| COWLEY & MENDOZA | [2010] FamCA 597 |
| FAMILY LAW – CHILDREN – With whom a child lives – RELOCATION – Where both parents are loving, child-focussed and ‘good-enough’ – Where the mother seeks to return to her country of origin and have the children live with her – Where the father seeks the children live in Australia and spend week about time with each parent – Consideration of MRR & GR (2010) 263 ALR 368 – Elucidation of the principles to be applied in parenting matters and under s 65DAA – Where the best interests of the children call for significant, regular involvement of both parents – Where the expert evidence states that the children are too young to spend a week away from either parent – Where the mother’s proposal seeking the children live overseas would not allow significant involvement by the father – Orders made providing for significant involvement of both parents gradually progressing to shared time |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CB, 60CC, 61DA, 65D, 65DAA, 69ZN, 69ZQ |
| AMS v AIF (1999) 199 CLR 160 Goode v Goode (2006) FLC 93-286 Lansa and Clovelly [2010] FamCA 80 McCall v Clark (2009) FLC 93-405 MRR v GR [2009] HCA Trans 316 MRR v GR (2010) 263 ALR 368 Pitkin and Hendry [2008] FamCA 186 Starr and Duggan [2009] FamCAFC 115 Taylor and Barker [2007] FamCA 1246 U v U (2002) 211 CLR 238 |
| APPLICANT: | Mr Cowley |
| RESPONDENT: | Ms Mendoza |
| INDEPENDENT CHILDREN’S LAWYER: | Anthea Walsh |
| FILE NUMBER: | MLC | 9206 | of | 2008 |
| DATE DELIVERED: | 16 July 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 9-10 February 2010 Written Submissions 20, 21 April 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Brasch |
| SOLICITOR FOR THE APPLICANT: | McPhee Lawyers, New Farm |
| SOLICITOR FOR THE RESPONDENT: | Ms Reeve of Eaton Lawyers, Arana Hills |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
Parental Responsibility
The father and mother shall have equal shared parental responsibility for the children of the marriage D born … May 2005 and R born … September 2006 (“the children”) in respect of all “major long-term issues” as defined in the Family Law Act 1975 (as amended).
The parents shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.
Co-Parenting Arrangements
The children shall live with, spend time with, and/or communicate with each of their parents in such manner and for such periods of time as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
In the event that the mother shall reside permanently in Brazil or otherwise outside of Australia:
(a) The children shall live with the father;
(b)The mother and father shall do all such things, sign all such documents and pay all such amounts as…
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CaseChat Overview and Summary
The court was required to determine the extent of parental responsibility for major long-term issues and other issues, establish co-parenting arrangements including living arrangements and time spent with each parent, and make orders regarding communication between the children and the parent with whom they were not residing. Further, the court needed to address the mother's ability to travel internationally with the children, including the provision of security and the return of passports, and to make orders preventing the removal of the children from Australia.
Murphy J made orders for equal shared parental responsibility for major long-term issues, with each parent having responsibility for other issues when the children were in their care. The orders detailed specific living arrangements and time spent with each parent, varying depending on whether the mother resided in Australia or Brazil, and included provisions for school holidays and special occasions. Crucially, the court issued injunctions restraining the mother from removing the children from Australia except as provided by the orders, requested the Australian Federal Police place the children's names on an airport watch list, and ordered that the children's passports be held by the father. The mother was permitted to take the children to Brazil for three weeks annually during the Christmas holidays, subject to providing written consent from the father, booking and funding the travel, and paying a security deposit of $20,000. All other outstanding parenting applications were dismissed.
Orders
Orders of the court
Parental Responsibility
1.
The father and mother shall have equal shared parental responsibility for the children of the marriage D born … May 2005 and R born … September 2006 (“the children”) in respect of all “major long-term issues” as defined in the Family Law Act 1975 (as amended).
2.
The parents shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.
Co-Parenting Arrangements
3.
The children shall live with, spend time with, and/or communicate with each of their parents in such manner and for such periods of time as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
4.
In the event that the mother shall reside permanently in Brazil or otherwise outside of Australia:
(a) The children shall live with the father;
(b) The mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the children to communicate by telephone, ordinary mail, e-mail and Skype (or other such similar forms of communication) at all such reasonable times as the children might request and in any event not less than once every two days;
(c) The children shall, subject to the succeeding provisions of these orders relating to the provision of surety, spend time with the mother:
(i) In either Brazil or Australia at the mother’s election for the whole of the June / July and September / October Australian school holiday periods and for one half of the December / January school holiday period each year with the mother and father sharing equally the cost of the children’s flights and otherwise themselves each being responsible for any accompanying adult flights as might be desired or required by airline policy;
(ii) In Australia upon the giving of not less than 21 days notice in writing in accordance with the succeeding provisions of these orders as if, during any such visit by the mother, she was residing in Australia.
5.
During the period of three months during which the mother shall be in Brazil attempting to extend her leave of absence, but not permanently:
(a) The children shall live with the father;
(b) The mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the children to communicate by telephone, ordinary mail, e-mail and Skype (or other such similar forms of communication) at all such reasonable times as the children might request and in any event not less than once every two days.
6.
In the event that the mother resides in Australia and consequent upon the mother and the father commencing to reside in separate residences:
(a) the children shall live with the father for three consecutive nights and immediately thereafter shall live with the mother for three consecutive nights and thereafter in that same sequence until 9.00am on Monday 2 July 2012 and, so as to give effect to that sequence, it shall be taken to commence at 9.00am on the Friday immediately following the parties commencing to reside in separate residences;
(b) As and from 9.00am on Monday 2 July 2012, the children shall live with the father from 9.00am Monday 2 July 2012 until 9.00am Monday 9 July 2012 and between those hours on those days each alternate week thereafter and shall live with the mother from 9.00am Monday 9 July until 9.00am Monday 16 July and between those hours on those days each alternate week thereafter;
(c) The sequences provided for in each of the previous sub-paragraphs of these orders shall be interrupted so as to avail the children of spending one half of all gazetted school holiday periods with each parent in each year.
(d) The mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the children to communicate with the parent with whom they are not living by telephone, ordinary mail, e-mail and Skype (or other such similar forms of communication) at all such reasonable times as the children might request and:
(i) until 2 July 2012, not less than once during each period of three days that the children are with each of their parents; and
(ii) after 2 July 2012 not less than twice a week.
7.
That notwithstanding the previous orders, the children shall spend time with the parent with whom they are not residing on special occasions as follows:-
(a) On the birthday of each child:
i if a school day from after school until 6.00pm;
ii if a non school day from 1.00pm until 6.00pm;
iii with that parent to be responsible to collect and return the children.
(b) With the Father on Father’s Day (from 9.00am until 5.00pm) with the Father to be responsible for collecting and return the children;
(c) With the Mother on Mother’s Day (from 9.00am until 5.00pm) with the Mother to be responsible to collecting and returning the children.
8.
The mother and father do all such things and sign all such documents as are necessary so as to authorise the schools or day care centres attended by the children to give each parent information about the children’s educational progress and any other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at each parent’s own cost), and failing the provision of such authority this order shall of itself operate as such authority in each case.
9.
The Mother and Father shall:-
(a) Keep the other parent informed at all times of their residential address, email address and landline telephone contact number;
(b) Keep the other parent informed of the names and addresses of any and all treating medical or other allied health practitioners who may be treating the children and authorise those practitioners to provide the other parent with all such information in their possession relevant to the child or children and, failing the provision of any such authority by either parent, this order shall of itself operate as such an authority.
(c) Inform the other parent as soon as practicable of any medical condition, significant health issue or significant illness suffered by the children.
10.
The mother and father shall be at liberty to attend any and all extra-curricular activities undertaken by the children and each party shall do all things and sign all documents reasonably necessary to ensure that the attendance of each parent is authorised.
Injunctions re Removal of Children from Australia
11.
The mother, by herself, her servants and/or agents is hereby restrained from taking or sending, or attempting to take or send, the children D born … May 2005 and R born … September 2006 from the Commonwealth of Australia, except as provided by these orders.
12.
The Court requests that the Australian Federal Police place the names of the children (D born … May 2005 and R born … September 2006) on the airport watch list at all points of international arrivals and departures in Australia for the purpose of preventing the removal of the children from Australia in breach of these orders.
13.
The Marshal 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.
14.
The passports of the children be held by the Father and not be used to travel by either the Mother or the Father except in accordance with agreement in writing between them or an Order of the Court.
International Travel
15.
The mother be at liberty to take the children to Brazil (or on other overseas holidays) with the written consent of the father (such consent not being unreasonably withheld) upon such terms and conditions as might be agreed in writing between them, and in the absence of further or other agreement on one occasion each year for a period of three weeks in the Christmas school holidays commencing in 2010 in accordance with the following provisions of this Order:
(a) the mother be responsible for booking and funding the air fares for herself and the two children
(b) prior to any fares being booked, the mother pay to an account in the name of the father the sum of $20,000 as security for the return of the children at the conclusion of time referred to in this order. In the event that the children are not returned at the end of such time, the father is at liberty to use the surety funds to defray the costs of recovering the children. Otherwise the money shall be returned to the mother within seven days of the children’s return;
(c) the mother is to provide the father with an itinerary, copies of the return tickets and advice in writing of the contact details for the children whilst they are overseas.
(d) Consequent upon compliance with sub-paragraphs (b) to (d) inclusive of these orders:
(i) The parties shall do all such things, sign all such documents and pay equally all such reasonable fees as might be necessary to facilitate the removal of the names of the children from the airport watch list so as to permit of the travel by the children contemplated by this order;
(ii) The father shall provide to the mother the children’s passports in sufficient time to allow travel arrangements to be properly made;
(e) Within seven days of the children’s return to Australia the mother shall return the children’s passports to the father and the parties shall do all such things, sign all such documents and pay all such reasonable fees as might be necessary to place the children’s names on the airport watch list as contemplated by paragraph 12 of these Orders.
(f) During any time that the children are absent from Australia in accordance with this order, the mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the children to communicate by telephone, ordinary mail, e-mail and Skype (or other such similar forms of communication) at all such reasonable times as the children might request and in any event not less than once every two days.
Dismissal of Other parenting Applications
16.
All outstanding applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.
Other Orders
17.
All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
18.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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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