Dalby and Selwood
[2016] FCCA 2833
•4 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALBY & SELWOOD | [2016] FCCA 2833 |
| Catchwords: FAMILY LAW – Final parenting arrangements of child aged seven – allocation of parental responsibility – high conflict relationship – poor communication – overseas travel – handover arrangements – arrangements for school holidays – best interests – principles to be applied. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 65C, 65DAA, 65DAC, 65DAE, 68P, 68Q |
| Cases cited: B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 MRR v GR (2010) 240 CLR 461 Bartel & Schmucker (No.3) [2012] FamCA 1094 Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1997) FLC 92-729 |
| Applicant: | MR DALBY |
| Respondent: | MS SELWOOD |
| File Number: | ADC 4410 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 25 October 2016 |
| Date of Last Submission: | 25 October 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 4 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | In person |
| Counsel for the Independent Children's Lawyer: | Ms Tinning |
| Solicitors for the Independent Children's Lawyer: | Norman Waterhouse Lawyers |
ORDERS
The mother have sole parental responsibility for the child X born (omitted) 2009, save that she shall, prior to making a decision about any issue:-
(a)Inform the father in writing of the issue about which a decision needs to be made, the decision the mother would like to make in respect of such issue and the reasons promoted for doing so; and
(b)Allow the father 14 days after the provision of the information referred to above to respond to the same in writing; and
(c)Consider the father’s response, if any, when coming to a decision about any such issue; and
(d)Inform the father of the final decision made with respect to that issue as soon as practicable thereafter.
The child shall live with the parties during school holidays as follows:-
(a)During each of the end of Term 1, 11 and 111 school holidays:-
(i) In odd numbered years:-
A. with the father for the first half of the school holidays, noting that the first half of the school holidays are defined as commencing from the conclusion of school on the last day of the school term and concluding at 5pm on the middle Saturday of the school holidays;
B. with the mother for the second half of the school holidays, noting that the second half of the school holidays are defined as commencing from 5pm on the middle Saturday of the school holidays until 5pm on the last Sunday of the holidays.
(ii) In even numbered years:-
A. with the mother for the first half of the school holidays, noting that the first half of the school holidays are defined as commencing from the conclusion of school on the last day of the school term and concluding at 5pm on the middle Saturday of the school holidays;
B. with the father for the second half of the school holidays, noting that the second half of the school holidays are defined as commencing from 5pm on the middle Saturday of the school holidays until 5pm on the last Sunday of the holidays.
(b)During the Christmas school holidays which are defined as commencing from the conclusion of school on the last day of Term 4 and concluding at 5pm on the Friday prior to the resumption of Term 1, on a week about basis:-
(i) In 2016/2017 and in each alternate year thereafter:-
A. with the Father from the conclusion of school on the last day of Term 4 until 5pm on the following Friday (the “first Friday”) and from 5pm on the second Friday of the holidays until 5pm the following Friday and between the same times in each alternate week thereafter;
B. with the mother from:5pm on the first Friday of the school holidays until 5pm the following Friday and between the same times in each alternate week thereafter;
(ii) In 2017/18 and in each alternate year thereafter:-
A. with the mother from the conclusion of school on the last day of Term 4 until 5pm on the following Friday (the “first Friday”) and from 5pm on the second Friday of the holidays until 5pm the following Friday and between the same times in each alternate week thereafter;
B. with the father from 5pm on the first Friday of the school holidays until 5pm the following Friday and between the same times in each alternate week thereafter;
(c)That notwithstanding the provisions of paragraph 2 of the Order made 2 September 2016 and any order made as to Christmas and school holidays, the child shall spend time with each of the mother and father as follows:-
(i)With the mother from 4pm on 31 December 2016 until 4pm 1 January 2017 and between the same times in each alternate year thereafter;
(ii)With the father from 4pm on 31 December 2017 until 4pm 1 January 2018 and between the same times in each alternate year thereafter;
In 2017 and each alternate year thereafter the mother shall be at liberty to take the child on an extended overseas holiday for a period of up to four weeks at any time nominated by the mother, provided that:-
(a)such travel is restricted to any country or countries that are signatories to the Hague Convention;
(b)the mother provide the father no less than 28 days prior to the proposed Departure date of the following information:-
(i)proposed dates of travel;
(ii)manner of travel including identity of any airline;
(iii)destination and stopover countries;
(iv)details as to accommodation arrangements
(c)the mother provide to the father no less than seven days before the date of departure from the Commonwealth of Australia:-
(i)a copy of a return ticket for the child, evidencing the date of departure and date of return to the Commonwealth of Australia; and
(ii)a copy of an itinerary which contains sufficient contact details to enable telephone communication between the father and the child.
In 2018 and each alternate year thereafter the father shall be at liberty to take the child on an extended overseas holiday for a period of up to four weeks at any time nominated by the father, provided that:-
(a)such travel is restricted to any country or countries that are signatories to the Hague Convention;
(b)the father provide the mother no less than 28 days prior to the proposed Departure date of the following information:-
(i)proposed dates of travel;
(ii)manner of travel including identity of any airline;
(iii)destination and stopover countries;
(iv)details as to accommodation arrangements
(c)the father provide to the mother no less than seven days before the date of departure from the Commonwealth of Australia:-
(i)a copy of a return ticket for the child, evidencing the date of departure and date of return to the Commonwealth of Australia; and
(ii)a copy of an itinerary which contains sufficient contact details to enable telephone communication between the mother and the child.
In the event of overseas travel by either party with the child, then the travelling party do ensure that:-
(a)the child communicates with the non travelling parent by telephone or skype on not less than two occasions each week whilst overseas with the travelling parent to initiate such call to the non travelling parent (in the event of telephone contact) on a number provided by the non travelling parent at times agreed between the parties;
(b)make up time is provided to the non travelling parent commensurate with the number of nights that the child would otherwise have been in the non travelling party’s care but for the overseas travel, with such make up time to occur on dates agreed between the parties in writing within three months of the child’s return from the overseas holiday.;
(c)where possible, the overseas travel coincides with a school holiday period so as to minimise the child’s absence from school.
The parties do all such acts and things necessary to ensure that the child holds a current passport and, to the extent necessary, the parties sign and return any document required for this purpose within seven (7) days of receiving a request to do so.
In the event the either party fails to comply with a request to sign and return any document necessary to obtain a passport for the child, a Registrar of the Family Court is appointed, pursuant to section 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the non complying party and to do all acts and things necessary to enable a passport to be obtained for the child.
The mother shall be entitled to possession of the child’s passport.
Upon the father’s request, the mother shall provide the child’s passport to the father no less than fourteen (14) days before any notified proposed date of departure from the Commonwealth of Australia with respect to any overseas travel by the father and X.
In the event the father removes the child from the Commonwealth of Australia for the purpose of holiday travel, then he shall return the passport to the mother within seven (7) days of the child’s return to the Commonwealth of Australia.
That paragraphs 6 & 7 of the orders made on 15 December 2014 and continued on 15 April 2015 placing the name of the child on the Airport Watch List be discharged and the parties be at liberty to remove the child from the Commonwealth of Australia for the purpose of holiday travel as provided for herein.
Upon noting that the following order envisages the father and mother coming into contact with one another for the purposes of the handover of the child and is therefore inconsistent with the intervention order made by the Port Adelaide Magistrate’s Court on 22 October 2014, which prohibits the father from making direct contact with the mother such order is varied pursuant to the provisions of section 68P(2) of the Family Law Act 1975 to enable the following order:
In the event that handover cannot occur at the (omitted) Children's Contact Centre due to the unavailability of the service, then and in such an event, handover do occur at the entrance of the (omitted) Supermarket with either party at liberty to have an agent attend on their behalf provided such person is known to X.
In the event that either of the parties concerned is running more than ten minutes late for such exchange he or she is to advise the other of this eventuality by means of an SMS text message.
A copy of these orders and the reasons for judgement in support of them be provided to the Registrar of the Port Adelaide Magistrates Court.
The mother and father shall:
(a)keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the child and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the child; and
(c)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the child. This order authorises any treating medical practitioner to release details of the child’s medical condition and/or injury to the other parent.
The appointment of the independent children’s lawyer is discharged.
All extant applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Dalby & Selwood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4410 of 2014
| MR DALBY |
Applicant
And
| MS SELWOOD |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Dalby “the father” and Ms Selwood “the mother” are the parents of X born (omitted) 2009.
The proceedings before the court concern final parenting arrangements for X, in four distinct areas, which can be summarised as follows:
·how should parental responsibility for X be shared between his parents;
·what are the appropriate arrangements for X to travel overseas, given both his parties have an (nationality omitted) background;
·how should X’s time, with his parents, be divided during school holidays;
·at what location and in what circumstances should X be exchanged between the parties, when X’s school is not being utilised for this purpose.
Background
The proceedings have been on foot since December 2014. Since that time, it has become readily apparent to me that the parties do not communicate well. I mean no disrespect but, in the jargon of social scientists, they are to be characterised as a “high conflict family”.
As such, the parties have the potential to disagree about every issue, both important and trivial arising in respect of X. By way of example, during the course of the proceedings, the parties have disagreed about the following:
·the date on which the marriage between them broke down irretrievably;
·whether X should undergo an adenotonsillectomy;
·hair styling for X;
·dental arrangements for X; and
·the appropriateness or otherwise of X being permitted to have fake tattoos.
More significantly, the parties have radically different views about the nature of their marital relationship, with each party asserting that he or she was the victim of the other’s violent behaviour. Ms Selwood is also aggrieved that Mr Dalby is unreliable in respect of the provision of child support for X and is often late to hand overs.
In short, the parties’ parenting relationship is tense and acrimonious. However, without doubt, they both love X very much indeed and both recognise that it is essential to X’s wellbeing that he has a meaningful and viable relationship with each of his parents.
The progress of the parties’ competing applications, through the court, has not been smooth. Initially, both had legal representation, but neither can now afford lawyers. They are both passionate individuals, with an inclination to speak their minds. As such, they have little hesitation in ventilating their opinions, about one another, which are not inclined to be flattering.
Although both Mr Dalby and Ms Selwood have been unfailingly polite to me and respectful to the court process, they have each demonstrated a propensity to talk over the other in court. As such, in the absence of legal representation, it is to all intents and purposes impossible for them to have a meaningful dialogue, with one another and reach common ground in respect of X, notwithstanding their shared love for him.
In these circumstances, on 22 July 2015, an order was made that X be independently represented in these proceedings. X’s representative is Mr Timothy Adey, an experienced Adelaide family lawyer. Mr Adey has briefed a barrister, Holly Tinning to appear on his behalf in these proceedings.
Pursuant to the provisions contained in section 68LA of the Family Law Act 1975, Mr Adey and Ms Tinning are required to form an independent view, based on all the evidence available to them, of what is likely to be in X’s best interests. Mr Adey is also to be regarded as a party of equal importance, in these proceedings, to the parents.
As such, in addition to advocating on behalf of X’s best interests, it is the responsibility of Mr Adey and Ms Tinning to act as honest brokers between the parties and explore avenues for consensual resolution of the various disputes between them.
This is because it is generally recognised by the legislature, in its drafting of Part VII of the Family Law Act, which is the part of the act dealing with children, that it is not helpful to children, if their parents are engaged in acrimonious litigation regarding their care. Wherever possible, parents should agree about the future parenting of their children [see section 60B(2)(d)].
The parties’ competing applications were fixed for final hearing on 1 & 2 September 2016. This followed the failure of a mediation conference, arranged by Mr Adey in an attempt to resolve the issues in dispute between the parties. Unfortunately, due to pressure of court business, the parties’ matter could not be reached for trial, as another matter had to proceed.
In these circumstances, I invited the parties and Ms Tinning to give it another go and see if they could reach some common ground in respect of final arrangements for X. To the parties great credit, over the course of the 1st and 2nd September, with the significant assistance of Ms Tinning, they were able to agree on very many and substantial issues to do with X’s care, which were able to be reduced to a consent order.
However, they were not able to agree on the matters delineated above. In these circumstances, it falls to the court to make a decision. The parties and Ms Tinning agreed that each would make submissions to the court following the formal tender of their trial affidavits, without the need of formal cross-examination, which was recognised, by all concerned, as being likely to enflame the situation rather than to be helpful, in resolving the case.
Besides the affidavits of the parties themselves, the other significant piece of evidence available to the court is in the form of a family report prepared by Ms K, a social worker and family consultant, who met with the parties and X, in September of 2015.
Ms K described X as a bright and animated child, who struggled emotionally, when her interview with him moved to a discussion about the conflict between his parents. At this stage, she reported him as becoming guarded and downcast.
From my perspective, this was one of the more important aspects of the family report. It was also apparent to Ms K that X had been witness to verbal conflict, between his parents, and at least one police attendance. The parties need to understand that it is the professional opinion of Ms K that X has been emotionally damaged by the conflict between them. This cannot be regarded as good parenting.
However, notwithstanding X’s obvious discomfort, occasioned by his parents’ poor and mistrustful relationship, of which he is undoubtedly well aware, he reported positive experiences to Ms K of living with his mother and spending time with his father.
In this context, Ms K provided the following description of her observations of X, with each of his parents:
“During the separate sessions of interaction, X was noted to engage in an animated and bright manner with both his parents. He was noted to manage close physical contact with both parents without any apparent sign of fear or wariness, and complied with their direction when given. He also managed to separate from his mother for the session with this father without apparent distress. Both parents were also observed to be child-led in their interactions with X.”[1]
[1] See family report dated 28 September 2015 at paragraph 97
At the outset of the case, the main focus was on Mr Dalby’s application to parent X in a week-about basis. Ms K was not in favour of such a regime, as she believed that the parties lacked the capacity to parent in a cooperative, amicable and flexible fashion.
As such, she did not think that X was likely to experience a consistency in his emotional care, as he moved between the two households. Notwithstanding these difficulties, Ms K noted that Mr Dalby wished to have a significant degree of involvement in X’s life.
In interview with Ms K, Ms Selwood expressed her desire for peace in her relationship with Mr Dalby. In this context, she proposed a regime of X spending significant and substantial periods of time, with his father, which fell short of equal time. She did not believe that X was currently capable of managing easily from being separated from either of his parents for periods of up to one week in duration.
Ultimately, through the brokerage of Ms Tinning, Mr Dalby agreed to a regime that would see X continuing to live mainly with his mother but spending time with his father for three nights in the first week of each school fortnight and for two weeks in the second week.
Ms K described Ms Selwood’s view of the parties parenting relationship in the following terms:
“Ms Selwood suggested that the parties still required a third party through whom to communicate. She conveyed her disappointment that this was the case, but reflected that it was currently “impossible” for the parties to reach an agreement by themselves.
…
In relation to parental responsibility, Ms Selwood reported that whilst she would continue to consult Mr Dalby in relation to major decision making, given the parties’ ongoing difficulties in making these decisions Ms Selwood wished for the responsibility to ultimately made sole decisions in relation to X.”
Other significant areas of dispute, between the parties, which were identified by Ms K, in the family report, included the following:
·Ms Selwood’s desire to move to live in Melbourne;
·Whether Ms Selwood’s male friend had assaulted X;
·Whether X needed to have his tonsils removed, for the sake of his health.
Ms Selwood has decided to abandon her plans to live in Melbourne. At an early stage in the proceedings, injunctions were made restraining the physical discipline of X and the issue of Ms Selwood’s friend seems to have receded over time. More significantly, it remains Ms Selwood’s positon that X needs to have his tonsils removed.
As a child, Ms Selwood suffered from pus on her tonsils, which apparently almost led to her premature death. She believes that X has inherited this physical weakness and therefore it makes sense to have his tonsils removed to prevent potentially dangerous inflammation.
At the hearing of the proceedings, Ms Selwood presented a letter, from X's GP, which read as follows:
“I examined X today who presented with his mother, who claimed he had returned from his father’s house yesterday very unwell with temperature and sore throat.
On examination, he had a fever (39.4) very red and swollen tonsils in keeping with acute tonsillitis. I started him on antibiotics. I understand he has had recurrent issues with tonsillitis and has already been seen by an ENT surgeon to discuss the possibility of surgery. I am very happy to see him again.[2]
[2] See Medical Certificate dated 6 September 2016 from Dr L
An earlier letter from the Department of Otolaryngology at the Women’s & Children’s Hospital, indicated that the removal of X’s tonsils was “not a matter of life and death, but rather will improve X’s quality of life in preventing future episodes of tonsillitis.”[3]
[3] See annexure E to the mother’s affidavit filed on 19 December 2014
In these circumstances, Mr Dalby did not provide his consent to the operation. On 5 December 2014, an order was made that the mother sign an authority, directed to X’s general medical practitioner, to authorise the doctor concerned to discuss with Mr Dalby the child’s medical condition, including any need for him to have a tonsillectomy. It also seems to be the case that Ms Selwood invited Mr Dalby to attend a medical appointment, regarding X’s tonsils, in early 2015.
In April of 2015 Dr S, an ear nose and throat surgeon at (omitted) Hospital indicated that he did not believe that the number of episodes of “clinically diagnosed acute tonsillitis [suffered by X] do not currently appear to meet our criteria for considering surgical intervention.”[4] In these circumstances, the operation has not as yet taken place.
[4] See annexure A to Mr Dalby’s affidavit of 16 June 2015
Ms K was unable to provide an unequivocal view as to the efficacy of the parties sharing parental responsibility for X. In this context, she was greatly concerned about the parties obviously conflicted relationship and the fact that X appeared to have been badly affected emotionally by it.
Ms K considered that there was a balanced argument regarding parental responsibility for X. On the one hand, she noted that Mr Dalby and Ms Selwood reported the need for a third party through whom to communicate in respect of issues to do with X. On the other hand, she noted Mr Dalby’s obvious desire to remain significantly involved in X’s life, including being part of making major decisions in respect of his care.
In respect of parental responsibility, it is Ms Selwood’s position that she would inform Mr Dalby of all important decisions needing to be made, but in order that those decisions were made effectively, she would want to have ultimate authority in respect of them. Ms K described this as a process of parallel parenting. She wrote as follows in respect of it:
“….[a parallel parenting plan] would practically address the main areas of difficulty between the parties by limiting the parties’ interaction and communication. It may also support X’s relationship with both parents whilst shielding him from further conflict. There also is some opinion that suggests that a more civil co-parenting relationship can be built over time on the basis of parallel parenting plans.”[5]
[5] See family report of Ms K dated 28 September 2016 at paragraph 111
However, on balance, Ms K did not consider that the fact that communication between parents was poor and difficult was, of itself an appropriate reason to permanently remove parental responsibility from a parent, such as Mr Dalby. Accordingly, it is my impression that Ms K was marginally more in favour of the parties sharing parental responsibility, for X, than against it.
However, Ms K placed a significant rider on her recommendation to the extent that, if the parties, particularly Mr Dalby, continued to use litigation as a means of resolving their communication difficulties, the court should actively consider granting Ms Selwood sole parental responsibility for X.
As their names suggest, both parties share an (nationality omitted) background. Ms Selwood was born in (country omitted) on (omitted) 1977. She came to Australia, in 2007, on a working holiday. She holds dual Australian/(nationality omitted) citizenship. Her parents currently live in (country omitted).
Mr Dalby was born in Adelaide on (omitted) 1969. He is a self-employed (occupation omitted). Ms Selwood is currently engaged in tertiary studies, in (studies omitted) at (omitted), which she will complete shortly.
The parties met, in Adelaide, in 2008. They married, in Adelaide, on (omitted) 2008. They are now divorced. The parties fundamentally disagree about when they separated. The mother asserts that it was in 2010. The father much later, in 2014.
This issue is emblematic of the parties’ difficulty in agreeing about issues of substance between them. It is my view that the parties have had a difficult relationship, for very many years, but have been compelled to interact regularly with one another because of X. From time to time, they have got on reasonably well, but on other occasions, conflict has flared between them.
Given the circumstances of his parents, X is entitled to hold both an Australian and (country omitted) passport. He has travelled to (country omitted) on several occasions with his mother commencing with a visit in 2008, when he was a baby.
On 21 May 2014 the police sought an intervention order, on behalf of Ms Selwood, against Mr Dalby. The order was granted by the Port Adelaide Magistrates Court on 21 May 2014. The order provides that Mr Dalby can only make contact with Ms Selwood, through a third party, for the purpose of child arrangements.
It is Mr Dalby’s position that he was historically the victim of the mother’s violent and aggressive behaviour and he only agreed to the intervention order on the basis that the police would withdraw criminal charges against him, which were based on the mother’s fabricated allegations. The order in question is a final one.
Ms Selwood’s position is that she has had a consistent level of difficulty with Mr Dalby, who is, in her words “fine [with her] provided she agreed with what he wanted.” She has also consistently asserted, throughout these proceedings, that Mr Dalby has not honoured his obligations to pay child support to her for X. It is also her position that Mr Dalby has been violent and verbally abusive towards her, rather than vice versa, as he asserts.
The intervention order has not been varied since it was made. Accordingly, it has implications for handover arrangements. Ordinarily, X is exchanged between the parties at his school. This will not be possible, during school holidays. Ms Selwood would prefer to use a children’s contact centre as the venue for exchanging X. Mr Dalby would prefer the (omitted) store at (omitted). He is vehemently opposed to the use of a police station. Ms Selwood would like to be able to bring along a neutral support person to handovers.
Given Mr Dalby’s aspiration to spend as much time as possible, with X, it is his position that the child should spend equal periods of time with each of his parents during school holidays. From Ms Selwood’s position, X is too young to be away from her for what she regards as being extended periods of time.
It is Ms K’s recommendation that orders for time spending arrangements be as detailed as possible so as to remove opportunity for further debate. To the parties’ credit, they have now been able to agree on a comprehensive regime in respect of the festive days of Christmas and Easter; Father’s day and Mother’s day; and X’s birthday.
Ms Selwood’s parents are elderly. In these circumstances, she would like the opportunity to be able to travel to (country omitted) with X annually. Mr Dalby believes that this is too frequent. He is open to X travelling to (country omitted) but is fearful of potential deviation to any country, which is not a signatory to the Hague Convention on International Child Abduction.
The independent children’s lawyer’s position
Ms Tinning proposes that the following orders should be made, in order to break the deadlock about the remaining parenting issues in dispute:
a)Parental responsibility
“That the mother have sole parental responsibility for the child X born (omitted) 2009, save that she shall, prior to making a decision about any issue:-
a) Inform the father in writing of the issue about which a decision needs to be made, the decision the mother would like to make in respect of such issue and the reasons promoted for doing so; and
b) Allow the father 14 days after the provision of the information referred to above to respond to the same in writing; and
c) Consider the father's response, if any, when coming to a decision about any such issue; and
d) Inform the father of the final decision made with respect to that issue as soon as practicable thereafter.”
Ms Tinning submits that this order is appropriate because of the high level of animosity between the parties which she categorises as being undiminished during the two years of these proceedings.
From Ms Tinning’s perspective, this was most recently demonstrated when the parties had a recriminative discussion with one another from opposite ends of the bar table about a haircut which X had recently received whilst in his father’s care which Ms Selwood considered to be too short. One of the ironies in the matter being that Mr Dalby himself wears his hair in a ponytail.
This in turn led to an argument about the appropriateness of X being allowed to have a fake tattoo. What was striking about this robust discussion was the fact that neither party was disinhibited, in any way, by the courtroom setting and the presence of either me or Ms Tinning.
In these circumstances, it is Ms Tinning’s view that the process of parallel parenting advocated by Ms Selwood, in which she would inform Mr Dalby of relevant decisions but would have the ultimate imprimatur to make them, is the only viable one for the parties concerned particularly given X’s susceptibility to be affected by parental conflict.
Again, from my own perspective, the obvious difficulties in the parties relationship with one another was demonstrated by Ms Selwood’s wish to re-agitate the tonsils issue by her tender of the most recent medical report. It is clearly not desirable that the court make a decision about the issue which is of passionate importance to Ms Selwood but which Mr Dalby approaches with suspicion, on the run, on the basis of such a brief letter.
From my perspective, it is a medical issue rather than a legal one. It should be determined after the parties have conferred with an appropriately qualified person who could provide them with the pros and cons arising in respect of the issue. Rather, at least at an earlier stage, they chose to consult different doctors independently of one another and the issue as a result remains outstanding and controversial between them.
b) School holidays
Ms Tinning proposes the following regime in respect of school holidays:
“During each of the end of Term 1, 11 and 111 school holidays:-
(i) In odd numbered years:-
(1)with the father for the first half of the school holidays, noting that the first half of the school holidays are defined as commencing from the conclusion of school on the last day of the school term and concluding at 5pm on the middle Saturday of the school holidays;
(2)with the mother for the second half of the school holidays, noting that the second half of the school holidays are defined as commencing from 5pm on the middle Saturday of the school holidays until 5pm on the last Sunday of the holidays.
(ii) In even numbered years:-
(1)with the mother for the first half of the school holidays, noting that the first half of the school holidays are defined as commencing from the conclusion of school on the last day of the school term and concluding at 5pm on the middle Saturday of the school holidays;
(2)with the father for the second half of the school holidays, noting that the second half of the school holidays are defined as commencing from 5pm on the middle Saturday of the school holidays until 5pm on the last Sunday of the holidays.
During the Christmas school holidays which are defined as commencing from the conclusion of school on the last day of Term 4 and concluding at 5pm on the Friday prior to the resumption of Term 1, on a week about basis:-
(i) In 2016/2017 and in each alternate year thereafter:-
(1)with the Father from the conclusion of school on the last day of Term 4 until 5pm on the following Friday (the “first Friday”) and from 5pm on the second Friday of the holidays until 5pm the following Friday and between the same times in each alternate week thereafter;
(2)with the mother from:5pm on the first Friday of the school holidays until 5pm the following Friday and between the same times in each alternate week thereafter;
(ii) In 2017/18 and in each alternate year thereafter:-
(1)with the mother from the conclusion of school on the last day of Term 4 until 5pm on the following Friday (the “first Friday”) and from 5pm on the second Friday of the holidays until 5pm the following Friday and between the same times in each alternate week thereafter;
(2)with the father from 5pm on the first Friday of the school holidays until 5pm the following Friday and between the same times in each alternate week thereafter;
That notwithstanding the provisions of paragraph 2 of the Order made 2 September 2016 and any order made as to Christmas school holidays, the child shall spend time with each of the mother and father as follows:-
(i)with the mother from 4pm 31 December 2016 until 4pm 1 January 2017 and between the same times in each alternate year thereafter;
(ii)With the father from 4pm 31 December 2017 until 4pm 1 January 2017 and between the same times in each alternate year thereafter.”
In support of these orders, Ms Tinning asserts that a week about regime is the simplest mechanism with which to approach the division of school holidays. As such, it is the one most calculated to diffuse tensions between the parties and therefore areas in which conflict can break out.
Ms Tinning concedes that such a regime may take X some time to easily transition to but, in her submission, longer blocks of time with his father will lead to the adding of meaning to X’s relationship with his father.
c) Overseas travel
In respect of the issue of overseas travel, Ms Tinning proposes the following regime:
“That in 2017 and each alternate year thereafter the mother shall be at liberty to take the child on an extended overseas holiday for a period of up to four weeks at any time nominated by the mother, provided that:-
a)such travel is restricted to any country or countries that are signatories to the Hague Convention;
b)the mother provide the father no less than 28 days prior to the proposed Departure date of the following information:-
(i) proposed dates of travel;
(ii) manner of travel including identity of any airline;
(iii) destination and stopover countries;
(iv) details as to accommodation arrangements
c)the mother provide to the father no less than seven days before the date of departure from the Commonwealth of Australia:-
(i)a copy of a return ticket for the child, evidencing the date of departure and date of return to the Commonwealth of Australia; and
(ii)a copy of an itinerary which contains sufficient contact details to enable telephone communication between the father and the child.
That in 2018 and each alternate year thereafter the father shall be at liberty to take the child on an extended overseas holiday for a period of up to four weeks at any time nominated by the father, provided that:-
a)such travel is restricted to any country or countries that are signatories to the Hague Convention[6];
b)the father provide the mother no less than 28 days prior to the proposed Departure date of the following information:-
(i) proposed dates of travel;
(ii) manner of travel including identity of any airline;
(iii) destination and stopover countries;
[6] Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980 hereinafter referred to as “the Hague Convention”
(iv) details as to accommodation arrangements
c)the father provide to the mother no less than seven days before the date of departure from the Commonwealth of Australia:-
(i)a copy of a return ticket for the child, evidencing the date of departure and date of return to the Commonwealth of Australia; and
(ii)a copy of an itinerary which contains sufficient contact details to enable telephone communication between the mother and the child.
That in the event of overseas travel by either party with the child, then the travelling party do ensure that:-
a)the child communicates with the non travelling parent by telephone on not less than two occasions each week whilst overseas with the travelling parent to initiate such call to the non travelling parent on a number provided by the non travelling parent at times agreed between the parties;
b)make up time is provided to the non travelling parent commensurate with the number of nights that the child would otherwise have been in the non travelling party’s care but for the overseas travel, with such make up time to occur on dates agreed between the parties in writing within three months of the child’s return from the overseas holiday.;
c)where possible, the overseas travel coincides with a school holiday period so as to minimise the child’s absence from school.
That the parties do all such acts and things necessary to ensure that the child holds a current passport and, to the extent necessary, the parties sign and return any document required for this purpose within seven (7) days of receiving a request to do so.
In Ms Tinning’s submission, given X’s background; the fact that he has extended family in (country omitted) who obviously love him; and his cultural background; it is clearly in X’s best interest to be able to travel, from time to time to (country omitted).
In her submission, alternate yearly travel for X strikes an appropriate balance between his parents’ respective concerns. In addition, the manner in which she has drafted the proposed order would allow Ms Selwood to travel to (country omitted) in the warmer months which is her expressed preference.
d) Non-school handovers
Ms Tinning proposes the following order in respect of non-school handovers.
“That in the event that handover cannot occur at the (omitted) Children's Contact Centre due to the unavailability of the service, then and in such an event, handover do occur at the entrance of the (omitted) supermarket, (omitted) with either party at liberty to have an agent attend on their behalf provided such person is known to X.”
In support of this proposal, Ms Tinning points to the fact that it cannot be guaranteed well in advance that a children’s contact centre will be available to the parties at the times when they will require it. Ms Tinning is not in favour of the parties using a police station. Rather, she asserts that a public venue such as a supermarket will provide enough security in the circumstances currently prevailing between the parties.
Ms Tinning recognises that lateness for handover is likely to be an irritant in the parties’ already difficult relationship. In these circumstances she proposes that the parties inform one another by SMS message if they are running late. The orders which she proposes, together with the variation outlined above, would require a modification of the applicable intervention order pursuant to the provisions of section 68P.
The legal principles applicable
Part VII is the part of the Family Law Act 1975, which deals with the law relating to arrangements for the care of children. The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act section 64B].
A parenting order may deal with any aspect of a child’s care, welfare and development. Specifically such an order may also deal with the allocation of parental responsibility for a child. Accordingly, the various disputes arising between Mr Dalby and Ms Selwood can be resolved and regulated by the making of parenting orders.
Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account in deciding how a child’s best interests are to be served are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations which are set out in section 60CC(2)(a)(b) namely:
(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.
Prior to amendments made to the Act relating to family violence in 2011, the considerations were not formally ranked. However, as a result of the insertion of section 60CC(2A) into the Act,[7] the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[7] See Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(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.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(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).”
Other specific criteria relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice for the child affected in every case.[8]
[8] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[9] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[10]
[9] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[10] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
Pursuant to section 65C of the Act, a child’s parents; the child him or herself; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order. In addition, as a consequence of the provisions of section 65D, the court is empowered to make whatever parenting order it considers “proper”. Pursuant to section 64B parental responsibility can be allocated to two or more persons.
Clearly this provision, when considered in the light of the objects and principles underlying Part VII, contained in 60B, is supportive of the concept of parents sharing parental responsibility and meeting their responsibilities concerning their children’s care, welfare and development.
Given the importance, which the applicable legislation places on the co-involvement of parents, in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of the specific amounts of time, which a child spends with each of his or her parents. There is no presumption in favour of equal time per se. This is not the starting point for the court’s deliberations.
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[11]
[11] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
In this case, the parties have agreed on a regime that will see X spending substantial and significant time with his father. In addition, in my view, given the significant conflict between the parties over an extended period of time which is manifest in their compromised capacity to communicate with one another in respect of arrangements for X, in my assessment, the presumption of equal shared parental responsibility is rebutted as it would not be in X’s best interests for it to be applied.
In these circumstances, I do not need to consider an equal time regime for X. The issue of parental responsibility, in the context of how important decisions in respect of X’s parenting are to be made and by whom, remains outstanding. As indicated above, pursuant to the provisions of section 64B(2), the court has the authority to make a parenting order which allocates parental responsibility for a child other than through the mechanism created by section 61DA.
In this case, I have no doubt that both Mr Dalby and Ms Selwood are deeply interested in every aspect of X’s care, welfare and development. Whatever criticisms each parent has of the other that both parents love X very much indeed. In this context, it is a significant thing to confer parental responsibility for the child on one parent in priority over the other.
The difficulty arising in this case is that, due to the conflict between the parents, which the outcome of this case has the potential to entrench, the parties are likely to experience extreme difficulty in exercising parental responsibility for X jointly.
Certainly this is Ms K’s view, given what she has identified as extreme communication difficulties between the parties and a high level of suspicion between them, although ultimately she did recommend that the parties share parental responsibility for X.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents can be made.
In Bartel & Schmucker (No 3) Cronin J said as follows regarding the nature of parental responsibility:
“Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.” [12]
[12] See Bartel & Schmucker (No 3) [2012] FamCA 1094, at [18]
These themes reflect what was said by the High Court in MRR v GR. The focus should not be on what is theoretically ideal for X in the sense of implementing a regime which allows the parties to embark upon decision making for X on a basis of strict equality which is in keeping with the overall ethos of the applicable legislation.
Rather I must consider the current reality of X’s family situation, particularly the emotional topography prevailing between his parents and how easily (or with what degree of difficulty, if at all) they are likely to reach a consensus about matters pertaining to X and what are the potential detriments, for X, if such a process becomes fraught with conflict.
Section 68P authorises the court to make orders inconsistent with a family violence order in certain circumstances. It attaches strict conditions to the exercise of this power. As a consequence, pursuant to the provisions of section 68Q, any portions of a family violence order which are not consistent with such a parenting order are rendered invalid.
Pursuant to section 68P(1), if the court makes a parenting order requiring a child to spend time with a person in a manner inconsistent with an existing family violence order it is required to follow the steps stipulated by section 68P(2) :
“(2)The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child:
(a)specify in the order or injunction that it is inconsistent with an existing family violence order; and
(b)give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and
(c)explain (or arrange for someone else to explain) the order or injunction to:
(i) the applicant and respondent in the proceedings for the order or injunction; and
(ii) the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(iii) the person protected by the family violence order (if that person is not the applicant or respondent); and
(d)include (or arrange to be included) in the explanation, in language those persons are likely to readily understand:
(i) the purpose of the order or injunction; and
(ii) the obligations created by the order or injunction, including how the contact that it provides for is to take place; and
(iii) the consequences that may follow if a person fails to comply with the order or injunction; and
(iv) the court's reasons for making an order or granting an injunction that is inconsistent with a family violence order; and
(v) the circumstances in which a person may apply for variation or revocation of the order or injunction.
(3)As soon as practicable after making the order or granting the injunction (and no later than 14 days after making or granting it), the court must give a copy to:
(a)the applicant and respondent in the proceedings for the order or injunction; and
(b)the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(c)the person protected by the family violence order (if that person is not the applicant or respondent); and
(d)the Registrar, Principal Officer or other appropriate officer of the court that last made or varied the family violence order; and
(e)the Commissioner or head (however described) of the police force of the State or Territory in which the person protected by the family violence order resides; and
(f)a child welfare officer in relation to the State or Territory in which the person protected by the family violence order resides.
(4)Failure to comply with this section does not affect the validity of the order or injunction.”
Conclusions
As of the consequence of the orders, which Ms Selwood both initiated and currently promotes X will have a meaningful level of relationship with his father. X will spend time with his father on both weekends and week days as well as on days of special significance to him and his family.
In these circumstances, in my view, the emphasis on future arrangements for X’s parenting should be on reducing the potential for him to suffer emotional harm as a result of being exposed to his parent’s poor and conflicted relationship.
Regrettably, I am satisfied that at present the parties have a susceptibility to fall into dispute with one another about matters to do with X. These disputes have the potential to escalate into unpleasant confrontations. X has been present at some of these which have caused him to become distressed.
In spite of good intentions, a spirit of empathy and collaboration cannot be inserted into parental relationships through legislative fiat. It is my view that the parties’ relationship is likely to be a difficult one for the reasonably foreseeable future. In these circumstances, I agree with Ms K’s assessment that the court should endeavour to make all orders dealing with X’s care as clear and as comprehensive as is possible.
For obvious reasons, it would be best for X if his parents could sit down with one another and have a calm and considered discussion about any significant issue relating to X’s care. However, at present, it is my impression that they simply do not have such a capacity.
Any discussion between them about even the most trivial issue relating to X, is likely to end in raised voices and recriminations. In my finding, this has been the pattern of their relationship for a significant period of time. At this stage, neither has any proposal as to how this pattern could be changed.
Although both Mr Dalby and Ms Selwood are committed to the long-term welfare of X, it is my perception that they are not likely to parent him, either consultatively or empathetically, with one another. Sadly, they do not particularly like each other. As a consequence, too a large extent, X will be parented in parallel.
In these circumstances, I agree with Ms Tinning that there has to be some process through which all necessary decisions, relating to X, will ultimately be made. Otherwise, like the issue of X’s tonsillectomy, important decisions will be endlessly deferred whilst the level of disputation rises as the parties themselves will be unable to reach an agreed position. This will lead to either one party taking unilateral action or the matter coming back to court.
In these circumstances, Ms Tinning’s proposal seems to me to be the best one all things considered. Mr Dalby will be provided with the necessary information. As such, he will be kept in the loop about important matters to do with X. However, there will be a defined decision making protocol to ensure that important issues regarding X’s welfare are ultimately resolved in a timely fashion.
X is still a little boy. He will be eight years of age in (omitted) of next year. In these circumstances, the court must carefully consider the consequence of any abrupt change in arrangements for his care [section 60CC(3)(d)] and his tender years [section 60CC(3)(g)]. In this context, I note Ms K’s view that X has a comfortable relationship with his father and is currently managing well the schedule of four nights in his father’s care.
In these circumstances, it seems more likely than not that X will be able to accommodate a longer period of time with his father during school holidays. In addition, as already pointed out, such a regime has the attraction of being relatively simple to implement. Accordingly, in these circumstances, I propose to adopt Ms Tinning’s proposal in respect of the division of school holiday periods.
When the parties competing positions are boiled down, there is really no major areas of dispute between them in respect of the issue of overseas travel for X. Both parties come from an (nationality omitted) background which they wish X to share. As such, it seems axiomatic that it will be beneficial to X to have an ongoing sense of connection with his maternal extended family, the majority of whom live in (country omitted).
In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the ability of the child concerned to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)].
Clearly if a parent absconds with a child overseas, such an action must have the most serious implications for the nature of the relationship the child has with the parent left behind. Such considerations raise the following practical issues and criteria:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;
·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;
·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[13]
[13] See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205
Fundamentally, the court must also make some assessment of whether there is any risk that the child concerned will not be returned to Australia in spite of undertakings to the contrary. Obviously, such a possibility has potentially very serious ramifications for the child concerned. It may result in the severance of his or her relationship with one aspect of his or her family.
In Line & Line the Full Court of the Family Court indicated that there are a range of circumstances which the court should take into account in assessing the degree of risk that a travelling parent will not return any child concerned to Australia. These factors include the following:
·the existence (or otherwise) of continuing ties between the departing parent and Australia, such as the ownership of real property; the existence of business interest; or the residence of family or close friends in the country;
·the existence and strength of possible motives not to return, which included the level of conflict between the parties concerned, particularly over child related issues;
·the existence and strength of possible motives to remain in the country of proposed travel, again including such things as possession of property; business interests; and the existence of familial and personal ties.
In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia. In determining whether some form of security should be imposed, the court is directed to consider the following factors:
·in fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary.
·the degree of risk that the departing parent will not return to Australia.
·whether the country of travel is a signatory to the Hague Convention and the likelihood of deviation to a non-convention country.
·the financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.[14]
[14] See Line & Line (1997) FLC 92-729 at 83,846
Ms Selwood has dual Australian/(nationality omitted) citizenship. She has lived in this country for a significant period of time. She is shortly due to finish her university studies and hopes to obtain employment in her field of expertise in Australia.
In these circumstances and given that (country omitted) is a signatory to the Hague Convention, there seems little risk that Ms Selwood will not return with X to Australia following any holiday to (country omitted). X has been to (country omitted) previously and there have been no difficulties in this regard.
In assessing a child’s best interest, I am directed to consider the particular background of the child concerned, which is taken to include the lifestyle, culture and traditions and any relevant characteristic of both the child and his/her parents [section 60CC(3)(g)].
The guiding hand of the legislature can be seen in section 60B, where the objects and principles of Part VII are set out. These principles (set out in full above) emphasise the entitlement of children to spend time with their relatives, particularly grandparents and speak of their right to enjoy their cultural background with other relatives who share that culture with them.
Cultural background is important to children. It provides them with a sense of identity. Identity very often comes from a child knowing relatives, on both the paternal and maternal aspects of his or her family and placing those relatives within a cultural context. In addition, overseas travel, particularly to meet family, can be a rich experience for children, the memory of which can last a life time.
In all the circumstances of this case, I accept that it will be beneficial for X to interact with members of his maternal family, in the cultural milieu applicable to them, and from which he himself derives, namely the rich culture of (country omitted).
Accordingly, I have come to the view that such overseas travel is likely to be beneficial to X. The question remaining how often should such travel occur. In my view, the schedule of travel and the conditions attached to it, proposed by Ms Tinning represent a sensible approach to the issue.
Ms Selwood is not likely to be able to travel annually to (country omitted) at this stage. The orders proposed by Ms Tinning allow her some flexibility in respect of future travel plans. I am satisfied that the orders are calculated to be in X’s best interests.
Issues relating to family violence have loomed large in these proceedings. There is currently in existence a final family violence order which was made on 22 October 2014. As I understand matters, this order was not made following a contested hearing. Accordingly, no formal findings were made by the Port Adelaide Magistrate’s Court in respect of the circumstances which led the police to apply for the order initially [section 60CC(3)(k)].
The order provides that Mr Dalby can only make contact with Ms Selwood through a third party for the purpose of child arrangements. In addition, he is not to enter any place of residence relating to Mr Selwood. This order has obvious implications in respect of how X is to be exchanged between the parties.
In most cases, X can be notionally exchanged between his parents at his school which will not necessitate the physical attendance of both of them at the school premises at the same time. However, this is not likely to be possible on many special occasions and during school holidays.
In these circumstances, the parties require a neutral and safe venue to use to exchange X between them when school is not available. In this context I must consider the implications of the existing family violence order and any other relevant practical considerations.
The parties have previously utilised the (omitted) Supermarket at (omitted) as a handover venue. In my view, this is preferable to a police station. As such, I will make the order as proposed by Ms Tinning.
In this respect, I propose the following order:
“Upon noting that the following order envisages the father and mother coming into contact with one another for the purposes of the handover of the child and is therefore inconsistent with the intervention order made by the Port Adelaide Magistrate’s Court on 22 October 2014, which prohibits the father from making direct contact with the mother such order is varied pursuant to the provisions of section 68P(2) of the Family Law Act 1975 to enable the following order:
That in the event that handover cannot occur at the (omitted) Children's Contact Centre due to the unavailability of the service, then and in such an event, handover do occur at the entrance of the (omitted) supermarket, (omitted) with either party at liberty to have an agent attend on their behalf provided such person is known to X.
That in the event that either of the parties concerned is running more than ten minutes late for such exchange he or she is to advise the other of this eventuality by means of an SMS text message.”
I also propose to make orders restraining the parties from abusing or denigrating the other in the presence or hearing of X. The purpose of such an order being to emphasise to the parties concerned the importance of quarantining X from the areas of conflict between them. I will also make the standard order requiring the parties to keep each other of them informed of their residential and contact details.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 4 November 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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