DARGAN & CHESNIK (No.3)
[2012] FMCAfam 1520
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DARGAN & CHESNIK (No.3) | [2012] FMCAfam 1520 |
| Catchwords: PRACTICE AND PROCEDURE – Application for an adjournment of the trial refused – no appearance on behalf of the mother. |
| Legislation: Family Law Act 1975, ss.60CC, 66(3)(b), 66(3)(d), 66(3)(l) |
| Applicant: | MR DARGAN |
| Respondent: | MS CHESNIK |
| File Number: | SYC 3607 of 2008 |
| Judgment of: | Federal Magistrate Demack |
| Hearing date: | 2 August 2012 |
| Date of Last Submission: | 2 August 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 2 August 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Crane Paskins Law |
| Solicitors for the Respondent: | Grounder & Associates |
THE COURT ORDERS ON A FINAL BASIS:
That the father be permitted to relocate with the child [X] born [in] 2001 (“the child”) from [omitted] area of New South Wales, and that he be permitted to relocate with the child at any future time pursuant to his exercise of his sole parental responsibility with the state of exception as provided in the Order of 12 August 2010 and amended on 23 August 2012 pursuant to Order 2 (b).
That Orders 5 (b), (d), (e) and 8 of the Orders made on 12 August 2010 and amended on 23 August 2012 be varied as follows:
(a)The mother spend time with the child every second and fourth Saturday of the month between 9.00am and 5.00pm with the mother to give the father fourteen (14) days prior notice of the first date the mother intends to spend time with the child in accordance with this Order, and thereafter notify the father in advance if the mother is not available to spend time with the child pursuant to this Order.
(b)That the father advise the mother of any school attended by the child and provide to the mother a copy of the child’s report.
That in the exercise of his sole parental responsibility, the father be at liberty to obtain an Australian Passport for the child without the prior consent of the mother and the requirement for any such consent is hereby dispensed with.
That in the event that the father and child travel overseas for a period longer than six (6) months to any country other than the United Kingdom, the father must notify the mother in writing no less than thirty (30) days before his and the child’s departure from Australia of the travel and locations to be visited with accommodation details.
That mother’s time with the child only occur during day time only unless otherwise agreed between the parties.
That in the event that there is any issue with respect to the wording of Order 4 which provides a mechanism for the father to obtain a passport for the child, the solicitor for the father have liberty to apply to chambers with respect to Orders necessary for the issue of an Australian passport for the child.
That the child travel on her Australian passport at all times unless otherwise agreed between the parties.
That upon issue, the child’s passport be held by the father.
THE COURT ORDERS:
That the mother’s request for adjournment of final hearing be dismissed.
That the mother’s response and affidavit of evidence in chief filed 1 August 2012 be dismissed.
That all outstanding applications be dismissed.
IT IS NOTED:
That for so long as the mother does not live in sufficient proximity to the child there are no restrictions on the father’s capacity to cause the child to live at a place in Australia within the reasonable exercise of his discretion.
That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.
| Notation: Order 1 & 2 has been amended pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules2001 to show 2010 in lieu of 2012. |
IT IS NOTED that publication of this judgment under the pseudonym Dargan & Chesknik (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES AT BRISBANE |
SYC 3607 of 2008
| MR DARGAN |
Applicant
And
| MS CHESNIK |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
I will deal firstly with the application for an adjournment sought by the mother. I am satisfied that the mother has had sufficient notice of today’s hearing and that in fact the trial was listed specifically at this time with the mother’s knowledge, understanding and her instruction to the Court that she was able to make herself available at that time. I note that solicitors have now filed a Notice of Address for Service, but that they fail to appear before me today in Brisbane, and fail to take any proper steps, as far as I’m aware, to have anyone appear before me on behalf of the mother.
Notwithstanding the fact that nobody is here to prosecute the mother’s application for an adjournment of the trial, it seems plain to me that I have material before me which sets out that is the mother’s position. It is proper for me to take the application for an adjournment, even in the absence of the mother.
The father opposes any adjournment. He has travelled from Western Australia to be here. He has filed his material, albeit late, but that material has been served on the mother’s legal representatives. His position with respect to the child’s time with the mother is not in substance different from that which was in his initiating application filed 22 August 2011.
The father has gone to substantial cost to be here today for the final hearing. He has instructed his solicitor and he has travelled from Western Australia. The mother makes no offer of attending to the father’s costs thrown away by any adjournment and the father is funding his own legal representation and travel arrangements.
It is in every way an unacceptable situation that having sought an adjournment through paperwork the mother chooses to not prosecute that application. It is simply not sufficient reason for the mother to assert that she has only recently achieved legal representation. The mother has previously been represented in a final hearing before me and, at that stage, had a number of different solicitors appear on her behalf. Notwithstanding the fact she lives presently in [Europe] the mother has sufficient knowledge and understanding of how to instruct solicitors in Australia and she has not done that in a timely way. Also notwithstanding the fact that the trial directions were made on 12 March 2012 in her presence. At that time, the orders which had brought her to Court on 12 March 2012, had required or provided, that in the event that she fail to appear personally at Lismore on that day, final orders may be made in her absence. She chose to attend on that day and for the matter to be listed for final hearing.
It seems to me that her failure to appear here today before me and her failure to prosecute her application for an adjournment on the basis that she has had knowledge of the father’s application, that she has not put any material of substance before me with respect to the substantive matter to be determined being the arrangements for [X], the fact that she provides no corroborative evidence with respect to her availability to come to Australia at any later date and the fact that she does not present here today seeking her adjournment. All of those factors combine for me to form the view that not only is there no basis for an adjournment but also there is no basis for me to consider that it is in [X]’s best interests that the matter be further adjourned.
It seems to me by taking into account that the father has properly brought these proceedings and that the father should have a proper expectation that the matter will be attended to at the time that the court has allocated for it, I dismiss the mother’s application for an adjournment of the final hearing.
This is an application for final orders with respect to parenting arrangements for [X], who was born [in] 2001, who, therefore, turns eleven (11) later this year. The mother fails to appear today and no legal representative appears on her behalf. I have earlier ruled on an application, made by the mother through written court documents, but not prosecuted by her today, with respect to a proposed adjournment of the final hearing and I have dismissed that application.
Ms Crane and the father are before me and Ms Crane has made sensible, thorough and complete submissions with respect to the best interest’s factors and why the orders are sought.
On behalf of the father it was submitted:
“MS CRANE: Yes, your Honour. Section 60CC of the Act provides that the primary considerations are the benefit to the child in having a meaningful relationship with the mother. It is, indeed, to Mr Dargan’s disappointment that the mother has elected to move to [Europe]. He is still, in my submission, a parent who does facilitate and encourage that meaningful relationship to the extent, as pointed out in his affidavit material, that when the mother was present in Australia for that period from March to 2 April of this year, that he made arrangements for [X] to see her mother. Notwithstanding that he had held some concerns about what the mother’s intentions were at that time and, given the history of the mother absconding with the child, some concerns about the mother doing that.
As it transpired though, the parents were able to have reasonable discussions reach an argument. Because he knew very much that [X] would want to see her mother and he didn’t want Ms C to leave the country without [X] seeing her. Further to that, you will note in that material, that the mother was also able to go to the school and to visit with [X] and meet [X]’s teacher. [X], herself, has not expressed a firm view about what she wants other than, of course, she would want to see her mother more than she is seeing her mother. But it’s a matter of her mother not making herself available for that time.
[X] still has a strong relationship with her mother, in terms of section 66CC(3)(b) and the father is doing what he can to promote that relationship to the – with some restriction based on what he considers is best for [X] because the father’s concern is that the mother is still doing her best, I suppose, to, at this point in time, encourage [X] to want to go and live with her in [Europe]. So the father does put some restrictions around the communications that [X] has with her mother from the point of view of sometimes making those communications able to be heard by him, if you like, or not – [X] has her mobile. Her mother contacts her by mobile. Sometimes that contact is through the school. But at other times, there may be necessary restrictions placed upon it if those communications are – have the effect of unsettling [X].
In terms of section 66CC(3)(d), the likely effect of any change in the child’s circumstances – well, again, it is a disappointment that the mother has absended herself and is, therefore, not able to have such frequent time with the child as she might otherwise have had according to those orders. But, your Honour, the – I think the school report that is attached to the father’s affidavit speaks volumes in terms of the move having been a positive one for [X] and that [X] is settled in her new environment and is doing very well in that environment.
There certainly is a practical difficulty and expense in there being any other order for [X] to spend time with her mother. With her mother living in [Europe], really, it’s a matter of doing the best that can be done with the time that the mother can get to Australia and, hopefully, putting some – these arrangements – putting them in place so that they do facilitate the mother spending some time with the child but still with some parameters around that to guard against some of the more troublesome matters that have occurred in the past in terms of [X] and – rather, the mother’s relationship or dealings with [X].
HER HONOUR: And it would seem from the mother’s affidavit, where she says at paragraph 4:
“I am now undertaking studies to become a [occupation omitted] in [Europe], which may require a few years, as I now understand.”
And then we add that to her financial difficulties, trying to make a living while studying at the same time, it would seem unlikely that she will be making herself available to be spending time with [X] in Perth frequently ‑ ‑ ‑
MS CRANE: That's so, your Honour.
HER HONOUR: ‑ ‑ ‑ if at all.
MS CRANE: Yes. That's so, your Honour. And, certainly, the father is not closed off to the possibility of being able to relax, I suppose, and allow more time in future. But that requires a level or degree of cooperation from the mother and a commitment from her.
HER HONOUR: And it may change as [X] becomes older and more able to distance her mother’s emotional reactions from [X]’s own emotions. So as [X] matures, it may be something that the father is satisfied [X] is better able to manage herself.
MS CRANE: In fact, the interaction in April seems to suggest that [X] is certainly developing that emotional maturity to be able to manage those interactions with her mother.
HER HONOUR: Yes.
MS CRANE: Your Honour, the – I suppose that goes to section 66CC(3)(g), in relation to the maturity of the child and in terms of being able to conduct that relationship with her mother but also, of course, Mr Dargan has established contact with those other relatives of the mother in Western Australia. And that’s working well, and that’s an important connection for [X]. And it seems that when [X] is in that home, that she can also, again, communicate freely with her mother in those surroundings, and that’s something that Mr Dargan has no problem with.
HER HONOUR: And clearly, he must have no problem, because he has purposefully facilitated that relationship.
MS CRANE: Yes. But, your Honour, in terms of the orders that he’s seeking, together with the passport type orders, it’s also important for [X] to maintain her relationship with her United Kingdom family. And there are two sides of the family, if you like, both mother and father’s relatives, also in the UK. So the passport/international travel orders will enable [X] to travel to the UK with her father, which at present, under the current circumstances, she could not do at all, other than, I suppose, on a UK passport. But then, have the difficulty, when she re-entered Australia, re-entering not as an Australian citizen, but as a citizen of the UK and requiring a visa, permission to do that.
Your Honour, I would submit that, again, unfortunately, the attitude to the child demonstrated by the mother has not been something that this court would see very often, and probably wouldn’t like to see, in that the mother has put her own needs first and moved to [Europe] to pursue her own desires of becoming a [occupation omitted]. And that has – that in itself creates a major problem in terms of any sort of compliance with the old orders, so, in a sense, necessitating the need to change those orders. In a sense, I suppose, the move from – it doesn’t seem to me, from the mother’s own material, that she objects to any part of the relocation to Western Australia. It’s more about what time she can spend in Western Australia with [X], and indeed, it makes it no more difficult, from a practical perspective, for her to spend time with [X] in Western Australian than it would have if she had remained in [U].
HER HONOUR: The order which you seek at this stage would be a final order which the father had sought, being able to relocate from [omitted] area.
MS CRANE: Yes.
HER HONOUR: His material indicates that there may be a necessity or imperative for him to not remain in Western Australia in the future.
MS CRANE: Yes.
HER HONOUR: There’s no reason for me to consider that he hasn’t properly taken [X]’s best interest into account when determining where he might move to for work when he moved to Western Australia. Is there any reason why – well, to put – I will pause – in the event he needs to leave Western Australia, will the order that is now in place after today be sufficient for him to be able to move from Western Australia to live somewhere else in Australia, without having to come to a court to seek permission?
MS CRANE: Certainly that’s the intention of the wording of the application, to enable him to be able to move to another location should he need to do so. And the reason he would need to do so would be for work, and ‑ ‑ ‑
HER HONOUR: Yes, yes. And there’s no reason for me to think that in having to move because of his work arrangements, that he wouldn’t be taking into account how that move would impact upon [X], and being mindful of that and making appropriate arrangements for her to help her transition.
MS CRANE: I would certainly submit that, your Honour, that his past conduct in terms of making those arrangements, by looking at [X]’s best interest and keeping those at the forefront of his mind, would also operate in the future. What Mr Dargan says in relation to that is that, whilst he wanted [X] to maintain particularly the schooling at [M] and have some security then in her life if we turn the clock back to 2010, he also sort of pitted that against what would be in [X]’s best interests if he continued to be an unemployed father and his response to that was to say that, “Really, [X] is better off if I am working, and I am able to earn an income and provide better for her”, because he certainly was not able to conduct his usual occupation at [U].
HER HONOUR: He also speaks in his material about, I guess, that tension between having maintained stability for [X] in the [M] school and how he perceived there to continue to be some personality issues in the community arising from what he perceives to be sort of sequelae from the litigation and my order that the child live with him. So although there was that stability issue, it would also seem that, in looking back now at what has transpired since the move to Western Australia, has enabled [X] to be relieved from the burden of being of any dispute which may surround her.
MS CRANE: And certainly that has been reiterated to me this morning by Mr Dargan, that really it has been a very positive move from that point of view, and he didn’t realise what tension that created in living in the [U] community, and knowing [X] seeing these other people who were aligned with her mother, and there were strong camps that developed in that litigation, and that that continued to impact upon Mr Dargan and [X] at that time. And he has really only realised what that – he knew it was there, but, being free of it, able to really appreciate the benefit of, in fact, being free of it.
HER HONOUR: Looking at your order 1 then with respect to the permission to relocate from the [omitted] of New South Wales, do you say that there is no requirement for any further order to make it plain that the father is – particularly whilst the mother remains living out of the country and certainly not in Western Australia - that he would be entitled to continue to make decisions about where [X] lives perhaps pursuant to my order 2 which gave him sole parental responsibility, changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the mother? So if we combine that order with the order that he is permitted to relocate ‑ ‑ ‑
MS CRANE: Yes, your Honour.
HER HONOUR: ‑ ‑ ‑ he would continue to be able to move as necessary so long as it didn’t make it significantly more difficult for the child to spend time with the mother, which, for example, a move to an eastern seaboard capital city might not. It’s ‑ ‑ ‑
MS CRANE: Might not. Because if he does relocate anywhere, it would most likely be Sydney or Melbourne for further work.
HER HONOUR: Yes. Somewhere which would be significantly more difficult, one would think, would be a remote or regional part of Australia where the mother not only had to fly into a capital city, but then had to travel within Australia to get to a place. One would expect that a capital city would be not a place which would make it significantly more difficult if the mother is travelling from [Europe] to Australia and sees the child when she is here.
MS CRANE: Yes, your Honour. I certainly had turned my mind to that issue, but following the comments that your Honour makes, it probably would be better if it were restated somehow as a part of that order number 1:
And thereafter relocate to any location provided it doesn’t make –
using the wording from the original order.
HER HONOUR: Yes. And that the father provide the mother with written notice of – I expect – I wonder if there was already an order in place which provided for written notice of any move.
MS CRANE: I think there was.
HER HONOUR: 48 hours. Order 16.
MS CRANE: Yes.
HER HONOUR: That would be not a difficulty, one would expect. If the father was planning on moving, he would be able to ‑ ‑ ‑
MS CRANE: He would certainly be able to do that, your Honour.
HER HONOUR: Yes. All right. So the continuing limit of daytime time only arises from an ongoing concern with respect to the mother’s inability to ensure that in her spending time with the child, the time is appropriate and doesn’t have those overtones of causing the child to feel unsafe in her father’s household, or distressed in her separation from her mother, or all of those things that your client deposes to, and which, to be plain, no more and no less than a continuance of the issues which were live at the final hearing which I then determined and formed the view that [X] should live with her father, and where the time with the mother was facilitated, in the first instance, through supervised time with then the capacity to build up to unsupervised time, and where even the supervised time was problematic and did not occur as the orders had provided.
MS CRANE: That’s correct. And you will notice, your Honour, that the mother did never progress past 5(b), which was the second and the fourth Saturday of the month from 9 am to 5 pm. That’s the first point. She didn’t progress past that, because she ceased the contact in April of 2011. And the second point is she didn’t follow through with the counselling that she was supposed to do pursuant to order 12 of those original orders. And as your Honour has said – and there were some difficulties in terms of the mother saying things to [X], giving things to [X] that were unsettling [X] in her residence with the father.
HER HONOUR: Yes. Anything further?
MS CRANE: Not unless your Honour requires anything further from me. I suppose what Mr Dargan would like me to say in conclusion is that, if possible, he would like an order that doesn’t require him to come back to court ever again. He doesn’t want to continue this relationship with me, your Honour. So in terms of section 66CC(3)(l), what we’re trying to do is get an arrangement that will produce that result.
HER HONOUR: You seek finality. With respect to order 4 in your case outline, the second sentence:
Should the father wish to travel overseas –
that’s with respect to [X] accompanying him, isn’t it?
MS CRANE: Yes, it is.
HER HONOUR: All right. Looking at that ‑ ‑ ‑
MS CRANE: So we should put “with [X].”
HER HONOUR: ‑ ‑ ‑ can I – because this is an order which is designed to enable the father to make decisions with respect to [X] and his arrangements, and part of that is the capacity to have the passport issue, I wouldn’t like there to be any barrier for the passport issuing which arises from there being ambiguity in the order which suggests that the mother may have the capacity to not consent to some travel. Taking that into account, would that second sentence be better worded thus:
In the event that the father and child travel overseas for a period longer than six months, or to any other country other than the United Kingdom, the father must notify the mother in writing in no less than 30 days before his and [X]’s departure from Australia of the travel and the locations to be visited with accommodation details.
MS CRANE: Yes, your Honour. I think that’s ‑ ‑ ‑
HER HONOUR: So I will read that again:
In the event that the father and child travel overseas for a period longer than six months, or to any country other than the United Kingdom, the father must notify the mother in writing in no less than 30 days before his and [X]’s departure from Australia of the travel and the locations to be visited and accommodation details.
MS CRANE: Suitable.
HER HONOUR: All right. Thank you, Ms Crane.
MS CRANE: Thank you.”
I accept each and every one of the submissions made by Ms Crane. I rely upon the submissions made by Ms Crane, made orally before me, the material that she relies upon and the exhibits that she has tendered.
I am satisfied that it is in [X]’s best interests that she not only remain living with the father, as I had determined in my order of August 2010, but that there be no impediment to the father being able to make proper arrangements for where [X] is to live in his care, which may, necessarily, because of the father’s work requirements and commitments, have to occur in a place different from where he and [X] are presently living. That is what occurred post the trial, and in late 2011 I made an order, on 10 October 2011, which allowed the father to leave the [omitted] area of New South Wales. The father required that order because notwithstanding order 2 of the final orders made on 12 August 2010 and amended on 23 August 2010 that he have sole parental responsibility for the child, except for decisions relating to (b) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the mother.
He was hamstrung by the order which required, at order 8, that the child remain enrolled at the [M] Primary School unless both parties provide each other with written consent to a change of school. [M] Primary School is near [U] in [NSW]. The father, having obtained work in Western Australia, he was no longer able to have the child attend the [M] Primary School.
A move to Western Australia, though, did not create a difficulty with respect to a change to the child’s living arrangements that made it significantly more difficult for the child to spend time with the mother because the mother, at that stage, was not living in Australia.
The mother is not living in Australia now. She is living in [Europe] and in her brief affidavit she deposes to the fact that she is studying in [Europe] which will take some years and that she is finding it financially difficult trying to study and also make a living. She doesn’t tell me that she is presently making a living in any manner. She declares herself to be a student on the face of the affidavit.
Having then made an order that the father is permitted to leave the [omitted] area and as the father, quite properly, seeks finality which is one of the best interest factors for the sake of the child, this order needs to be plain that the father will not need to return to the Court for the purposes of getting an order that he be able to relocate [X]’s residence, again, in the future should the need arise because of his work.
In the event that the father needs to leave Perth and obtain employment somewhere else, there is no reason before me for me to form the view that he will do that contrary to the child’s best interests. It seems to me the material before me would demonstrate that the father took into account [X]’s needs and requirements and attachments when he caused her to be able to live with him in Western Australia and to no longer go to the [M] Primary School. In the event that he needs to move in the future, there is no reason for me to form the view that he won’t again take into account her best interests.
The order it seems to me should include quite plainly his capacity to make further moves with the same proviso that changes to the child’s living arrangements, that make it significantly more difficult for the child to spend time with the mother, would be a factor that he would need to take into account.
So to be plain, the mother presently lives in [Europe] and the father presently lives in Perth. In the event that the father moved to live in any capital city in Australia, it seems to me that there would be no change to the child’s living arrangements that would make significantly more difficult for the child to spend time with the mother.
Further, in the event that the father moved to live somewhere within close proximity of any of the capital cities in Australia, he would not be making a change to the child’s living arrangements that make it significantly more difficult for the child to spend time with the mother. It would only be in the event that the mother had moved to Perth and the father was then moving the child from Perth that he would be making it more difficult for the child to spend time with the mother. Plainly, if that was the case, the father would need to take legal advice.
The orders the father otherwise seeks are orders which would maintain daytime time between [X] and the mother in the event that the mother travelled to spend time with the child. For the reasons which were submitted by Ms Crane, on behalf of the father, I accept that it remains in [X]’s best interests that her time with the mother, unless otherwise agreed between the parents, remain as being daytime time.
The father seeks the issue of a passport for the child, [X]. It seems to me that the order should also be plain that the only passport on which the child may travel, unless agreed between both parents in writing, is her Australian passport.
The mother says, in her material, that the child has a [European] passport which she could travel on and which the mother seems to be asserting would be a method by which [X] could maintain some connection with her [European] family, heritage and identity: a concept which I fail to understand in terms of the length between the passport on which a person travels and their cultural connection.
The child lives in Australia and has Australian citizenship. The parent with whom the child will be travelling internationally, it seems to me, unless something extraordinarily different happens, will be the father and it is proper for the child to leave and enter Australia on her Australian passport.
Bearing in mind the practical difficulties with having a passport issue with the mother not signing the documents, the distances involved, the letter from the Department of Foreign Affairs and Trade, which is exhibit 4 before me, and the issues expressed by the Department with respect to the so far non-issue of the passport, I’m satisfied that orders 3 and 4, as amended by me, are orders which should be properly made.
There is no reason for the Court to form the view that it is anything other than in [X]’s best interests that she be able to have the opportunity to travel internationally in her father’s care and company. There is also no reason for me to believe or form the view that the father would not do anything other than take into account the child’s best interests in arranging or facilitating any international travel.
Indeed, there is every reason to consider that the child should be in a position to travel internationally. Both the father and the mother are not born in Australia and there is extensive family of [X]’s, particularly in the United Kingdom.
Insofar, the orders made by me on 12 August 2010 and amended on 23 August 2010 are contrary to the orders now made, these orders will have predominance.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Federal Magistrate Demack
Date: 20 March 2014
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