Crisp and Crisp

[2013] FCCA 2028

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRISP & CRISP [2013] FCCA 2028

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – variation of interim orders – where final hearing adjourned part-heard – interim orders sought for period of the adjournment – child aged two years and five months – where mother has spent periods of time outside Australia – need for graduated program to rebuild mother’s relationship with child – child’s mother originally  from (country omitted) – consideration of child’s right to enjoy her (country omitted) culture – Watch List – Family Law Watch List – order to place the child’s name on the Family Law Watch List.

Legislation:

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

Cases cited:
Crisp & Crisp [2012] FMCAfam 556
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MR CRISP

Respondent: MS CRISP

File Number: SYC 1212 of 2012

Judgment of: Judge Scarlett

Hearing date: 21 November 2013

Date of Last Submission: 21 November 2013

Delivered at: Sydney

Delivered on: 29 November 2013

REPRESENTATION

Counsel for the Applicant: Mr Kearney SC

Solicitors for the Applicant: Newnhams Solicitors

Counsel for the Respondent: Ms Graves

Solicitors for the Respondent: David H. Cohen & Co

ORDERS

UNTIL FURTHER ORDER

1. The Orders made on 6 February 2013 are suspended.

2. Order 4 made on 23 April 2012 and Order 5 made on 15 June 2012 directed to the Australian Federal Police and the Secretary of the Ministry of Immigration and Citizenship  placing the name of the child X born (omitted) 2011 on the Airport Watch List otherwise known as the PACE Alert system are discharged.

3. Each of the Father MR CRISP born (omitted) 1971 and the Mother MS CRISP born (omitted) 1983 and their servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X (a female) born (omitted) 2011 from the Commonwealth of Australia.

4. It is requested that the Australian Federal Police give effect to the preceding Order by placing the name of the child X on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Family Law Watch List for a period of two (2) years from the date of this Order or until further Order of the Court.

5. Upon the expiration of the period of two (2) years referred to in the immediately preceding Order and subject to any further order of a court of competent jurisdiction the Australian Federal Police are to cause the removal of the name of the child X from the Family Law Watch List.

6. The Father and Mother are to have equal shared parental responsibility for the child X born (omitted) 2011.

7. The child X is to live with the Father.

8. The Mother is to spend time with the child X as follows:   

   (a)From the date of these Orders until 31 December 2013 from 2:00pm until 5:00pm each Monday, Wednesday and Saturday with such time to be in the presence of the father until and including Saturday 21 December 2013;

   (b)From 1 January 2014 until 31 January 2014 each Wednesday and Saturday from 9:00am until 5:00pm;

   (c)From 1 February until 28 February 2014:   

   (i)From 5:00pm on Friday until 5:00pm each Saturday; and

   (ii)From 2:00pm until 5:00pm each Wednesday;

   (d)From 1 March until 31 March 2014:

   (i)From 5:00pm on Friday until 9:00am on Sunday each alternate weekend in the first week; and

   (ii)From 2:00pm until 5:00pm on the Monday of the off week in the fortnight;

   (e)From 1 April until 30 April 2014:

   (i)From 9:00am on Friday until 9:00am on Sunday each alternate weekend in the first week; and

   (ii)From 2:00pm until 5:00pm on Monday and Wednesday in the off week; and

   (f)From 1 May 2014 as follows:

   (i)From 9:00am on Friday until 5:00pm on Sunday each alternate weekend in the first week; and

   (ii)From 2:00pm until 5:00pm on Monday and Wednesday in the off week.

   (g)By telephone at all reasonable times;

   (h)From 2:00pm to 5:00pm on the following occasions that are of particular significance to the child or special significance to the mother:

   (i)On the Mother’s birthday being (omitted);

   (ii)On Mother’s Day being the second Sunday in May;

   (iii)On the child’s birthday being (omitted); and

   (iv)On days that are of special significance to (country omitted) people; and

   (i)From 28 June 2014 for a period of up to one week during the New South Wales School holidays as agreed between the parties or in default of agreement for the first week commencing at 9:00am on the Saturday immediately after the end of the school term.

9. For the purpose of implementation of these Orders, the Mother is to collect the child from the Father’s residence or such other place as the parties may agree at the commencement of her time with the child and the Father or his nominee being an adult person known to the Mother will collect the child from the Mother’s residence or at such other place as the parties may agree at the conclusion of her time with the child.

10. The Father and Mother are to attend upon a Family Consultant at such times and places as may be appointed for the purpose of preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975 AND THE COURT REQUESTS that if possible Ms R be the Family Consultant nominated to prepare the Family Report.

11. THE COURT NOTES that Ms R conducted a Child Dispute Conference with the parties on 25 January 2013.

12. Liberty to apply on seven (7) days’ notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1212 of 2012

MR CRISP

Applicant

And

MS CRISP

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father to vary earlier interim parenting orders made by consent on 6^th February 2013. The final hearing of the parenting and property proceedings has run for three days and is part heard. Counsel for the parties estimate that the further hearing will require another three days and the matter has been adjourned to 13^th August 2014.

2. The Consent Orders were made in the light of a proposed visit to (country omitted) by the Mother from 8^th February to 5^th March 2013. The Mother returned to Australia but left again for (country omitted) on 28^th May, remaining there until 15^th October 2013.    

Interim Orders Sought

1. The Father now seeks interim orders to cover the intervening period until the Final Hearing resumes in mid-August. The orders he seeks are:

   1.That pending further order, order 2 of the Orders made 6 February 2013 be suspended.

   2.That pending further order the father and mother have equal shared parental responsibility for the child X born (omitted) 2011 (herein after referred to as “the child”).

   3.      That pending further order the child live with the father.

   4.That pending further order the mother spend time with the child as follows:

   (a)For four (4) weeks from 2.00 pm until 5.00 pm each Monday, Wednesday and Saturday with such time to be supervised by the father for the first two weeks.

   (b)After four (4) weeks and for a further four (4) weeks and for a further four (4) weeks each Wednesday and Saturday from 9.00 am until 5.00 pm.

   (c)After a further four (4) weeks and for a further four (4) weeks from 5.00 pm Friday until 5.00 pm Saturday and from 3.00 pm until 5.00 pm Wednesday.

   (d)After a further four (4) weeks and for a period of four (4) weeks from 5.00 pm Friday until 9.00 am Sunday each alternate weekend in week 1 and from 3.00 pm until 5.00 pm Monday each alternate week in week 2.

   (e) After a further (4) weeks and for a period of four (4) weeks from 9.00 am Friday until 9.00 am Sunday each alternate week in week 1 and from 3.00 pm until 5.00 pm Monday and Wednesday each alternate week in week 2.

   (f)     Thereafter, a two week cycle as follows:

   (i)          In week 1 from 9.00am Friday until 5.00pm Sunday.

   (ii)     In week 2 from 3.00 pm until 5.00 pm Monday and Wednesday.

   (g)     Regular telephone calls.

   (h)Following six months of time in accordance with 4(f), for one week on up to four occasions each year, to coincide with school holiday periods.

   (i)For periods of time on X’s birthday, Ms Crisp’s birthday, Mother’s Day and other special events.

   5.That pending further order and for the purpose of implementation of the time periods in Order 4 above, the mother and participate in Family Therapy with Dr K, Psychologist, of the (omitted) Child Psychology Centre or such other therapist as the parties may agree or the Centre may nominate.

   6.That pending further order and for the purpose of implementation of the Orders, the mother shall collect the child at the commencement of time periods from the residence of the father or such other place as the parties may agree and the father or his nominee shall collect the child at the conclusion of the time periods from the residence of the mother or such other place as the parties may agree.

   7.That pending further order the father and the mother by themselves, their servants or their agents are restrained from removing or attempting to remove the child from the Commonwealth of Australia.

   8.That pending further order the Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the Police Forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to prohibit either party from removing or attempting to remove the child from the Commonwealth of Australia.

   9.That pending further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration and Citizenship[1]are to take all necessary steps immediately to place the name of the child on the Airport Watch List also known as the PACE Alert System at all points of arrival and departure in the Commonwealth of Australia and the Australian Federal Police are to maintain an airport watch of the child on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.

   10.That a Family Report be prepared by the Mediation Section, Ms R, if available, prior to the resumption of the Hearing.

   11.Liberty to apply on 7 days’ notice in respect of the implementation of these Orders.

   [1] The name of the Department of Immigration and Citizenship has recently been changed to the Department of Immigration and Border Protection.

2. The Mother consents to the proposed order for a Family Report. Her counsel informed the Court that the Mother does not consent to the proposed Orders 5 (about family therapy with Dr K) or 6 (about changeover at the Father’s residence).

3. The Mother filed an Amended Response on 6^th February 2013. In her Amended Response she seeks the following interim orders:

   1. The parents, Ms Crisp born on (omitted) 1983 and Mr Crisp born (omitted) 1971 have equal shared parental responsibility for the child X born on (omitted) 2011.

   2.  The child lives with the Mother.

   3. The child spends time with the father each weekend from Saturday 10am to Sunday 5pm.

   4. The Father is to collect the child from the Mother’s residence at the commencement of his time with the child and the Father is to deliver the child to the Mother’s residence at the conclusion of his time with the child.

   5.  Any such Orders the Court deems fit.

4. Order 2 made by consent on 6^th February 2013 states:

   That upon the return of the mother to reside in Sydney, the mother spend time with the child X (“X”) born (omitted) 2011 as follows:

   (a)In the first week in the presence of Aunt (omitted) from 10:00 am Monday until 4.00 pm Tuesday and from 20.00 am until 4.00 pm Saturday.

   (b)In the second week from 10.0 am Monday until 4.00 pm Wednesday and from 10.00 am until 4.00 pm Saturday.

   (c)Following upon and subject to compliance with (a) to (b) above, then from 10.00 am Thursday until 10.00 am Sunday each week.

5. There are already orders in place regarding the name of the child being held on the Family Law Watch List maintained by the Australian Federal Police. Interim Orders to that effect were made on 23^rd April and 15^th June 2012.

Submissions and Evidence

1. The Application to vary the earlier Interim Parenting Orders was made by the father at the conclusion of the third day of the hearing. The Father was subject to cross-examination by counsel for the Mother on 20^th and 21^st November.

2. The Father’s reasons for seeking the proposed interim orders relate to his concerns about the child’s reticence to spend time with her mother as a result of her absences in (country omitted). The Mother was absent from 8^th February to 5^th March and again from 28^th May to 15^th October. The Father’s affidavit of 8^th November 2013 sets out the circumstances that he says have occurred from the mother’s return on 5^th October at paragraphs [151] to [161].

3. The Father deposed that the Mother contacted him on her return and asked to spend time with the child. They arranged to meet at (omitted) on the afternoon of 21^st October. The Mother and her aunt (omitted) met the Father and the Mother spent time with the child from 2:45pm to 5:15pm, in the presence of the Father. The Mother later spent time with the child on various occasions, usually accompanied by one or more relatives and in the presence of the Father or the paternal grandfather.

4. The Father described how the child displayed some apprehension at meeting the Mother and her aunt at (omitted) on 31^st October and did not wish to be parted from him. On other occasions the child looked to the Father for comfort and declined to accept food from the Mother or her aunt.

5. The Mother described the events that transpired after she returned to Australia at paragraphs [106] to [113] of her affidavit of 11^th November 2013. She referred to the Father’s wish that she consult the psychologist Dr K in paragraphs [105] and [110] of her affidavit, saying at [105]:

   Mr Crisp suggested before I returned to Sydney that X and I have “reintroduction” sessions with Dr K, the child psychologist, but I did not agree to do so as it is unnecessary and not recommended by Dr S.[2]

   [2] Affidavit of  Ms Crisp 11.11.2013 at [105]

6. Again, the Mother deposed:

   Mr Crisp is insisting that X and I see Dr K, the child psychologist. I have not agreed with this but sent a message to Mr Crisp that I would wait until the Court made orders in relation to this matter.[3]

   [3] Ibid at [110]

7. The Mother also deposed that since her return to Sydney she has been living with another aunt and her husband at an address where she has her own bedroom, with two beds, for herself and the child.

Applications for Parenting Orders

1. It does not matter that this is an application for interim orders in the context of a part-heard final hearing. The Court is still obliged to consider the matters in ss.60B, 60CA, 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth).

2. Part VII of the act deals with matters relating to children. The objects of Part VII are set out in s.60B(1) of the Act, providing for children’s best interests to be met by:

   a)ensuring that children have the benefit of both parents having a meaningful involvement in their lives, consistent with their best interests;

   b)protecting children from physical or psychological harm;

   c)ensuring that children receive adequate and proper parenting; and

   d)ensuring that parents fulfil their duties and meet their responsibilities.

3. The principles underlying those objects are set out in s.60B(2) and include (except when contrary to a child’s best interests):

   a)Children’s right to know and be cared for by both of their parents;

   b)Children’s 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;

   c)Parents jointly share duties and responsibilities concerning their children’s care, welfare and development;

   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).

4. Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary and additional considerations set out in subsections (2) and (3) respectively.

5. The Court is required by s.61DA of the Act to apply the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. In Goode & Goode[4]the Full Court of the Family Court held at [43]:

   …when making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. The presumption however does not apply where there are reasonable grounds to believe there has been abuse of the child or family violence (s.61DA(2)) or, when making an interim order the court does not consider application of the presumption appropriate (s. 61DA(3)). The presumption may be rebutted if the court is satisfied that it would conflict with the child’s best interests (s.61DA(4)).

   [4] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

6. Where the Court does make an order providing for a child’s parents to have equal shared parental responsibility, the Court is then required by s.65DAA to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent or, failing that, substantial and significant time.

7. All of these matters have been considered.

Conclusions

1. The parties both seek an order that they should have equal shared parental responsibility, and that appears to be appropriate in the circumstances.

2. I am not satisfied that this is a case where it would either be in the child’s best interests or reasonably practicable for the child to spend equal time with each parent. The level of communication between the parties is not sufficient for such an arrangement to work and the child, at the age of only two years and five months, is too young. She has lived in the primary care of the Father for most of her life and her mother has been out of Australia for two lengthy periods of time, four weeks and then over four months, both during this year.

3. For the same reasons, I am not satisfied that substantial and significant time with the Mother would be in the child’s best interests or reasonably practicable.

4. However, this little girl needs to spend more time with her mother than is currently the case. Whilst there needs to be some reintroduction of the child to the Mother, noting the Mother’s lengthy absences, the graduated program proposed by the Father appears to offer a program that would assist this child to build up her relationship with her mother.

5. The Mother’s proposed interim orders, as set out in her amended Response, propose the more radical step of changing the child’s residence so that she commences to live with the Mother. This does not appear to be at all in the child’s best interests.

6. It is well-established that the period of a child’s life from birth to the age of four is a critical time for the building up of attachments. This little girl has spent most of her time with her father, and it can reasonably be assumed that she is developing, or has developed, a strong attachment to him. The Father’s evidence suggests that the child’s attachment to the Mother is not nearly as well developed. After a separation of over four months, even allowing for Skype conversations, the child’s knowledge of her mother would be scant, which would explain the way she has looked to her father for reassurance when she has spent time with her mother since October.

1. This child needs to see her mother at fairly frequent intervals so that she will recognise her when she sees her. Whilst it will be of assistance for the Father to be present at first, the child will need to become used to spending time with her mother unsupervised.

2. The Father’s proposal at paragraph 4 of his Minute of Interim Orders Sought is identical to the orders proposed by the Father in his Minute of Orders proposed on a final basis. Had the hearing concluded in the three days allocated to it these are the Orders that the Father would have asked the Court to make as final orders. If these proposed orders were to be implemented now, the graduated process would see a steady build-up in the Mother’s time with the child until the month of May. The arrangement would be firmly in place by the time the adjourned hearing resumes in August, so the Court would be able to obtain some indication as to how well the arrangement has worked.

3. I have considered the times proposed by the Father, and I consider that slightly more time with the Mother would be beneficial for this child. A period of two hours in the afternoon is too short for there to be any reasonable time between mother and daughter.

4. It would also be beneficial for an arrangement to be in place when a Family Report is prepared. I propose to accede to the application to order a Family Report under the provisions of s.62G of the Family Law Act.

5. This is a case where there is a benefit to the child in having a meaningful relationship with both of her parents. It would appear that she has a meaningful relationship with her father but her relationship with her mother is not as strong, due both to the circumstances of her living with her father since the parties separated and, more recently, her mother’s absences from Australia.

6. There is no evidence of any unacceptable risk of physical or psychological harm when the child is in the care of either party.

7. The child is a little girl who was born on (omitted) 2011, so she is only two years and five months old. She is too young for her views to be considered.

8. It is relevant that this child, whilst born in Australia, has a mother from a (country omitted) background. Her mother has (country omitted) friends and extended family members who live in Sydney and there are various functions held by the (country omitted) community which it would be beneficial for this child to attend. She has a (country omitted) heritage and has a right to enjoy her (country omitted) culture and enjoy that culture with other (country omitted) people (see s.60B(2)). This does not mean that she should travel to (country omitted) in the near future.

9. The Father seeks an order that the Mother should participate with him in family therapy with a psychologist, Dr K, or another therapist, to assist in reintroducing the child to her mother. However, the Mother is unenthusiastic about this proposal and, in the circumstances, it does seem as if this arrangement will be beneficial.

10. There needs to be a place for changeover, and the Mother is not offering any other options than the Father’s proposal.

11. There is some merit in there being one set of interim parenting orders in force, so that the parties do not have to look at several different documents to ascertain what the appropriate parenting orders are.

12. I will make a fresh interim order restraining the parties from removing the child from Australia. I will discharge any previous Watch List orders so as to avoid confusion and make a fresh Order that contains a “sunset clause”.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  28 November 2013