Darwin and Sargent
[2011] FMCAfam 1164
•12 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DARWIN & SARGENT | [2011] FMCAfam 1164 |
| FAMILY LAW – Parenting – international relocation – interim arrangements – issue of child’s schooling – whether or not Independent Children’s Lawyer should be appointed – child of mature years who wishes to relocate with the mother to Chile – issue of Australian passport without consent of a parent. |
| Australian Passports Act 2005 (Cth), s.11 Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 61DA, 64B, 65DAA, 65Y, 68L, 68LA, 116C Family Law Rules2004 (Cth), reg.8.02 Federal Magistrates Act 1999 (Cth), s.17A Federal Magistrates Court Rules 2001 (Cth), reg.13.10 |
| Gitane & Velacruz [2007] FamCA 183; (2007) FLC 93-309 Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 Heard & De Laine;Crown Solicitor for the State of South Australia (Intervener) (1996) FLC 92-675; (1996) Fam LR 315 Jacobs & Vale (2008) FMCAfam 641 Lindon v Commonwealth of Australia(No.2) [1996] HCA 14; (1996) 136 ALR 251 Re JTT [1998] HCA 44; (1998) 195 CLR 184 Re K (1994) FLC 92-461; 17 Fam LR 537 P & P (1995) FLC 92-615; 19 Fam LR 1 |
| Applicant: | MS DARWIN |
| Respondent: | MR SARGENT |
| File Number: | SYC 628 of 2011 |
| Judgment of: | Monahan FM |
| Hearing date: | 8 April 2011 |
| Date of Last Submission: | 8 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Self-represented Litigant |
| Counsel for the Respondent: | Mr Blackah |
| Solicitors for the Respondent: | Not applicable |
ORDERS
All extant applications be adjourned to this Court on 2 February 2012 at 10:00am for final hearing (“the Final Hearing”) with an estimated hearing time of two (2) days.
Pursuant to s.62G(2) of the Family Law Act 1975 (“the Act”), the parties, [X], born [in] 1994 (“the child”), the child’s half-siblings, [Y] and [Z] (“the child’s siblings”), and the Respondent’s partner attend upon a Family Consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia, Sydney Registry (“the Family Consultant”) for the purposes of the preparation of a Family Report to be given to the Court by 25 January 2011.
AND FURTHER:
(a)The Family Report address the issues in this dispute relevant to ss.60cc, 61da and 65daa of the Act and any other matters that the Family Consultant considers important to the welfare or best interests of the child;
(b)The parties comply with all reasonable directions and requests of the Family Consultant;
(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court;
(d)In the event that the Family Consultant is one appointed under reg.7 of the Family Law Regulations, then within seven (7) days of being notified of the Family Consultant, the legal representative for each of the party deliver to the Family Consultant copies of all relevant applications, responses and affidavits and court orders filed by or on behalf of the party in the proceedings AND copies of any intervention or restraining orders currently in force;
(e)The Applicant’s legal representative and Respondent’s legal representative (or if unrepresented, the parties themselves) confirm with the Family Consultant no later than seven (7) days prior to the scheduled interviews that the interviews will proceed on the dates allocated (“the interviews”); and
(f)If either party proposes to have the Family Consultant available for cross-examination purposes at the Final Hearing, then such party’s legal representative will do the following:
(i)notify the relevant Family Consultant well in advance of the Final Hearing;
(ii)ensure that the Family Consultant is available to attend Court on the first morning of the Final Hearing at 11:00am; and
(iii)at least seven (7) days prior to the Final Hearing provide the Family Consultant with copies of all updated affidavit material, and any amended application or response filed after the interviews.
The Applicant make file and serve any further affidavits or other material to be relied upon by the applicant not later than 21 days prior to the Final Hearing and no further affidavits are to be filed without leave of this Court.
The Respondent make file and serve any further affidavits or other material to be relied upon by the respondent not later than 14 days prior to the Final Hearing and no further affidavits are to be filed without leave of this Court.
In the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”) not having been waived, the party responsible for the payment of the fees or any of them pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations 2000.
On or before 4:00pm two (2) business days prior to the Final Hearing the solicitors for each party (or if unrepresented, the party themselves) make file and serve:
(a)a minute of the precise orders sought; and
(b)an Outline of Case Document not exceeding five (5) pages in the following format:
(i)a list of the documents to be relied upon;
(ii)a brief chronology listing significant events;
(iii)an outline of contentions with respect to:
1. whether the presumption of equal shared parental responsibility applies (s.61DA);
2. the considerations relevant to equal time and substantial and significant time (s.65DAA);
3. each of the considerations relevant to determining the best interests of the child (s.60CC factors);
4. other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and
5. any other matter relevant to the decision.
The Applicant is authorised and permitted to apply for and receive an Australian passport for the child without first obtaining the consent of the Respondent.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The parenting Orders made on 30 March 1999 be suspended.
The Applicant have sole parental responsibility for the child.
The child live with the Applicant.
The Applicant be permitted to relocate with the child to Santiago, Chile.
The Applicant cause the child to be enrolled in an accredited international school in Chile suitable for a student in his final two (2) years of high school, for the purpose of the child completing an international baccalaureate award or equivalent qualification that would be recognised in Australia.
The Applicant cause the child to return to Australia for the month of January 2012 for the purpose of spending time with the Respondent and the child’s siblings, for the purpose of attending an interview(s) to facilitate the preparation the Family Report and to be present in Australia during the Final Hearing.
The Applicant return to Australia for the month of January 2012 in order to attend an interview(s) to assist in the preparation of the Family Report and to be present in Australia during the Final Hearing.
In the event that the Respondent travels to Chile, the Applicant facilitate the child spending time with the Respondent in Chile at such times as may be agreed between the parties.
The Applicant do all acts and things necessary to facilitate and encourage the child communicating with the Respondent and the child’s siblings by telephone, Skype or other electronic means at such times as may be agreed between the parties during the time that the child is in Chile.
The Applicant bear all costs of the child travelling to and from Australia for the purpose of the child spending time with the Respondent.
AND THE COURT DIRECTS THAT:
The Applicant inform the child’s siblings of the relevant date(s) for the interview(s) with the Family Consultant and of the dates of the Final Hearing.
AND THE COURT NOTES THAT:
(A)The interview(s) with the Family Consultant will likely take place between 9 and 13 January 2012 with a view to the Family Report being released on or before 25 January 2012.
(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Darwin & Sargent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 628 of 2011
| MS DARWIN |
Applicant
And
| MR SARGENT |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons are being delivered orally and can be settled when time allows or upon specific request.
This is an application by MS DARWIN (“the mother”) against
MR SARGENT(“the father”), seeking various parenting orders in relation to the child, [X], born [in] 1994 (“[X]”). More specifically, the mother is seeking interim and final orders granting her permission to obtain a passport for [X], and to enable [X] to relocate with her to Chile. The mother is also seeking a number of other orders on a final and interim basis that relate to [X]’s proposed schooling in Chile and the facilitation of time to be spent with the father in January 2012, in addition to communication time.
With my leave, the mother also filed an Application in a Case in Court on 8 April 2011 seeking interim orders including orders allowing her to relocate with [X] to Chile.
The mother’s application is supported by her Affidavit sworn on
3 March 2011 and filed on 4 March 2011 (“the mother’s affidavit”). The mother was self-represented before me on 8 April 2011 when I conducted an interim hearing. The mother did, however, have the assistance of the duty solicitor in the preparation of her Application in a Case and her preparation for the interim hearing.
The father, in his Response filed on 31 March 2011, opposes the final orders sought by the mother. In relation to parenting matters, the father is seeking final orders to achieve the following outcome:
·the father have sole parental responsibility for [X];
·[X] live with the father; and
·[X] spend time with the mother and communicate with her as agreed.
The father is also seeking interim orders for the appointment of an Independent Children’s Lawyer (“ICL”) and an urgent interim hearing upon the appointment of the ICL. The father relies on his affidavit sworn and filed on 31 March 2011. The father was legally represented by Mr Blackah of counsel at the interim hearing on 8 April 2011 and is again represented by Mr Blackah today at the interim judgment hearing.
Background
The parties commenced cohabitation in Canberra in 1994 and separated in 1998. As stated, their child [X] was born in 1994 and he is currently aged 16 years and [omitted] months. Parenting Orders were made by consent by the Family Court of Australia, in Canberra, on 13 March 1999 (“the 1999 Orders”). The 1999 Orders provided for [X] to live with the mother and for [X] to relocate with the mother from Canberra to Sydney. The 1999 Orders also provided for [X] to spend defined periods of time with the father in addition to telephone contact.
In relation to parental responsibility, paragraphs 7 to 9 of the 1999 Orders provided:
“(7)The mother shall have sole responsibility for decisions relating to education, healthcare and religion of the child.
(8)The mother shall advise the father and keep him advised of all medical issues relating to the child.
(9)The mother will arrange for the father to be sent all notices and reports relating to the child from the child’s school and will authorise the school to speak with the father regarding the child. In the event that the father intends to attend at the child’s school, he shall notify the mother in writing seven days in advance.”
The 1999 Orders also included the following notations:
“…[T]he father is bearing all the costs of contact travel at the time of the making of these orders because the mother is in receipt of a sole parent benefit.
…
The parties acknowledge that the child’s move to Sydney while the father remains in Canberra renders mid week face to face contact impracticable.
In the event that the father moves to Sydney, the parties intend to attend counselling to discuss resumption of midweek contact.
…
…[T]he father will visit the child’s school on no more than 8 occasions each calendar year unless otherwise agreed by the parties.”
[X] has primarily resided with the mother and his two half-siblings, [Z] and [Y], now aged 23 and 22 respectively, since the parties separated, except for a period of five months in 2009 when he resided with the father. The father asserts that this change in residence was initiated by [X] and this does not appear to be disputed by the mother. [X] has been schooled at [M] School in Sydney and he remains enrolled in that school. [X] was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) in primary school and has been under the care of a Dr S, psychiatrist. The parties disagree on the extent to which [X] suffers from ADHD and even whether his symptoms have abated given his growth into adulthood.
The parties agree that despite [X]’s poor performance at school in more recent times he should continue his schooling until the completion of Year 12.
The present dispute arose out of the mother’s decision to accept a position as a [occupation omitted] in Chile and her desire that [X] accompany her back to Chile to complete his high school studies. It would appear from the mother’s evidence that the parties entered into negotiations about the proposed move to Chile in late 2010 and early 2011. It is clear that the father’s opposition to the move is linked to the completion of [X]’s high schooling. There is also evidence that the father gave his conditional agreement to the relocation on 28 January 2011.
By the time the matter came before me for the first time in late March 2011, it was clear that what the father was seeking was evidence of [X]’s acceptance into an international school in Chile before his consent for the passport and relocation would be forthcoming.
The mother commenced these proceedings with her Initiating Application filed on 4 March 2011. That application came before me in my duty list on 29 March 2011 and on that occasion I determined that the matter would benefit from an urgent Child Dispute Conference pursuant to s.11F of the Family Law Act 1975 (“the Act”) that same day. I also made orders on that day directing the father to file his Response and supporting affidavit within 48 hours and I otherwise adjourned the matter until 1 April 2011.
When the matter returned on 1 April 2011, I determined that I should ask Ms R, family consultant, who conducted the Child Dispute Conference to give some brief oral evidence to clarify the some of the contents of her Child Dispute Conference memorandum and, in particular, provide any recommendations to the Court.
As a consequence of that evidence, I made orders for the parties to attend a further Child Dispute Conference with Ms R, but that on this next occasion the Child Dispute Conference be child-inclusive – in other words [X] was also to attend. The Child-inclusive Child Dispute Conference took place on 7 April 2011. In my orders made on 1 April 2011 I noted that the purpose of the Child-inclusive Child Dispute Conference was:
“…to obtain the views of the child relating to the proposed relocation to Chile, the child’s schooling in Australia and in Chile, the child’s proposed residential arrangements in Australia and in Chile and the weight to be attached to the child’s views.”
When the matter returned before me on 8 April 2011, the parties indicated that they remained in dispute about the issues of [X]’s relocation and schooling.
Given the circumstances, in particular, the proximity of the mother’s departure at the end of April 2011 and [X]’s age, together with the reality that I was not sitting again in Sydney until after the mother proposed to leave Australia, I determined that the matter would benefit from an interim hearing in the afternoon on 8 April 2011. The interim hearing duly proceeded after which I reserved my decision.
Issues
This interim decision will consider the respective interim applications of the parties. The father, in his Response, seeks orders for the appointment of an ICL. The father is also seeking an urgent interim hearing with the benefit of an ICL. With my leave, the mother filed an Application in a Case on 8 April 2011 seeking various interim orders, including an order permitting her to relocate with [X] to Chile pending final hearing of her Initiating Application. In the alternative, the mother sought summary dismissal of the orders sought by the father.
The Child Dispute Conference memoranda
As stated, the parties attended a Child Dispute Conference with Ms R, family consultant, on 29 March 2011 and again on 7 April 2011. In her first Child Dispute Conference memorandum, Ms R records the following summary of agreements reached:
“Both parents agree that [X] wishes to move to Chile with the mother. The father is willing to consider consenting to [X] relocating to Chile (but there is an issue in dispute that prevents him giving consent). If [X] remains in Australia, the father is willing to consider consenting to [X] living with his adult half-siblings but would prefer [X] to live with him.”
Under the heading “Issues Remaining in Dispute”, Ms R states:
· “Relocation: whether [X] should move to Chile with the mother. The mother is moving 29 April 2011. This issue actually came down to whether [X] should be enrolled in school in Chile before he relocates (in accordance with the father’s wishes) or after he relocates (in accordance with the mother’s wishes).
· Parental Responsibility.
· Who [X] should live with – whether he should relocate with his mother to Chile, live in Australia with his adult half-siblings or live in Australia with the father.
· How [X] should spend time with each parent.”
Under the heading “Issues Impeding Resolution”, Ms R sets out the following points:
· “The father will only consent to [X] relocating to Chile if he is provided with evidence that [X] is enrolled in a school in Chile (or at least given some evidence that there is a good chance that [X] will be accepted for enrolment) before he goes. The father has concerns that [X] will not be accepted into International schools in Chile due to his poor academic and behavioural records at his current school. The father is concerned that this will be disruptive to his academic progress and particularly damaging to [X] psychologically as he has high expectations that he will be accepted and the maternal family also have high expectations that he will be accepted.
· The mother will not attempt to enrol [X] in international schools until [X] is physically in Chile. This is due to the expense of enrolment and her belief that [X] has a better chance of being accepted if he presents to an interview prior to his current school records being transferred.
· The parents are not communicating well with each other.”
In her Child Dispute Conference memorandum dated 29 March 2011, Ms R did not make any formal recommendations. However, following her oral evidence it was clear that she was recommending a further Child Dispute Conference inclusive of [X] and, as stated, this occurred on 7 April 2011.
In her resultant memorandum, dated 7 April 2011, under the heading “Views of the Child”, Ms R records:
“Re the proposed relocation to Chile:
· [X] wants to move to Chile with his mother. He is frustrated and angry with his father and will not currently speak with him at all. He reports that his father had promised him that he could go, but has repeatedly engaged in ‘delay tactics’ in order to prevent him from going. He does not understand why his father is preventing him from going.
· [X] feels that his relationship with his father would be closer if he were to relocate to Chile, as he would want to keep in touch with him. If his father prevents him from moving to Chile then, at the moment, he feels he will not have any contact with his father.
· [X] sees the ‘cons’ of moving to Chile as missing his siblings and friends, having to leave [extra-curricular activity omitted], and that there will be hurdles in getting used to a new country. He sees the ‘pros’ of moving to Chile as being given new opportunities, developing new friends and social networks, being with his mother and spending time with extended family.
Re: schooling in Australia and in Chile
· [X] wants to continue his schooling and attend university.
· [X] believes that he will be able to get into a school in Chile. In the event he is unable to get into a school in Chile, [X] plans to return to Australia to finish his schooling. He did not report any concerns about pressure to achieve or consequences of not achieving.
· If [X] must remain in Australia then he would like to continue attending [M] School.
Re: proposed residential arrangements in Australia and in Chile:
· [X] wants to live with his mother in Chile under whatever circumstances she makes. Whilst living in Chile, [X] plans to return to Australia in the summer holidays, in order to visit his siblings and friends. He indicated that it would be his choice as to whether he visited his father or not.
· If [X] must remain in Australia then he wants to live with his half-siblings. He also wants his half-siblings to have parental responsibility for him, or for his mother to have parental responsibility for him. [X] was adamant that he will not live with his father.
Weight to be attached to the views of the child:
· [X] presented as a polite and very well-spoken young person who was well aware of the issues before the Court, having read his parents’ affidavits.
· [X] appeared to have thought about his decision to move to Chile, reporting a list of pros and cons related to the move.
· [X] was able to calmly outline his reasons for not wanting to live with his father, a description of his relationship with his father, and his current frustrations with his father.
· Whilst [X]’s description of his history of ADHD was somewhat vague and unclear, during the interview he did not exhibit any symptoms.”
Under the heading “Summary of agreements reached”, Ms R records “none”.
Under the heading “Issues remaining in dispute”, she records the following:
· “Relocation – whether [X] should move to Chile with the mother
· Parental responsibility
· Who [X] should live with
· How [X] should spend time with the other parent.”
Under the heading “Issues impeding resolution”, Ms R records the following points:
· “The mother is definitely moving to Chile and wants [X] to go with her.
· [X] wants to move to Chile.
· The father will not consent to [X] moving to Chile. He believes that [X]’s views should not be given much weight due to his lack of adequate maturity. He holds concerns regarding the psychological impact on [X] of potentially not meeting the ‘unrealistic pressures’ from the mother whilst in Chile. He believes that [X] will do better in Australia where he can gain some independence and mature with that experience.
· The father acknowledges that not consenting for [X] to move to Chile may have serious negative consequences for his relationship with [X], but believes the relationship will improve with time. He believes [X] is better off being angry at him, continuing his education, and developing some independence than what he would be if he went to Chile and couldn’t enrol or achieve at school and suffered the pressure and disappointment from his mother and maternal family as well as the disruption to his education.”
Under the heading of “Recommendations”, Ms R indicates that the matter is unlikely to benefit from further family dispute resolution, but that a family report may be of assistance to the Court.
Agreed and disagreed facts
The parties agree, or are not in significant disagreement, in relation to the following:
·there are existing long-standing parenting Orders in place whereby [X] lives with the mother and spends time with the father;
·the mother has sole parental responsibility for [X];
·[X] wishes to move to Chile with the mother and, should he be required to remain in Australia, he wishes to live with his half-brother and sister and not with the father; and
·[X] wishes to complete his high school studies and both parties consider that such completion would be in [X]’s best interests.
At the interim hearing, the parties indicated that they were in disagreement about whether [X] should be permitted to obtain a passport to facilitate his travel to Chile without first being offered a place to attend an international school in Chile. The father’s position is that this enrolment should occur before [X] is allowed to leave Australia. The mother, on the other hand, wishes to enrol [X] in an international school soon after she relocates to Chile.
Submissions
The mother and Mr Blackah, as counsel for the father, each gave the Court submissions in support of their respective interim applications. In addition, Mr Blackah provided the Court with a written outline of submissions.
Mother’s submissions
By way of summary, the mother began by submitting that the orders sought by the father in his Response should be summarily dismissed because there was no reasonable prospect of the father succeeding in obtaining the orders he sought. [X] is currently aged 16 years and three months and has clearly voiced his view that he wants to travel to Chile with the mother. Furthermore, should such travel not be permitted [X] still does not want to live with the father, preferring that he live with his half-siblings.
The current orders provide for the mother to have parental responsibility in respect of decisions relating to [X]’s education, health care and religion, and there was little or no prospect (according to the mother) of the Court making an order to give the father sole parental responsibility or making an order that would require [X] to live with the father given [X]’s age and strong views.
The mother also submitted that the appointment of an ICL was unnecessary as [X]’s views were clearly before the Court.
In the alternative, the mother sought orders to facilitate her relocation to Chile with [X] pending any final hearing. The mother asserted that that was the best outcome for [X] for three reasons:
·firstly, [X] wants to go and permission for relocation will make [X] “happy” (using the words of the mother);
·secondly, such an outcome may actually promote a more meaningful relationship between [X] and the father; and
·thirdly, such an outcome will improve [X]’s current mood in order to not just make him less resentful towards the father but hopefully improve his attitude towards his studies.
The mother submitted that the advantages to [X] in going with her to Chile clearly outweighed the disadvantages of him remaining in Australia. Given [X]’s strong views and age it is unlikely that he will respect any Order for him to live with the father. That said, if the Court considered that [X] should remain in Australia, the mother submitted that he should live with his two half-siblings who are not accompanying the mother back to Chile and who are in the process of establishing a home for themselves pending the mother’s move.
Father’s submissions
Mr Blackah argued that the need for an ICL arose from the very facts agreed to by the parties and fell within the guidelines set out by the Full Court of the Family Court of Australia (“the Full Court”) in Re K (1994) FLC 92-461; 17 Fam LR 537 (“Re K”), in particular [X] being a teenager holding strong views that would change existing arrangements. It also involves an international relocation. In addition, [X] has been diagnosed with and has been treated for ADHD and the impact of his medical problems has not been tested. An ICL would be able to independently investigate [X]’s circumstances and behavioural problems and the reasons that may explain his poor performance at school, both academically and in terms of his personal behaviour.
The basis for the orders sought by the father stems from the evidence which suggests that [X] is unlikely to become a student at any international school in Chile, in particular [omitted]. Consequently, if [X] goes to Chile there is a likelihood that [X] will not continue with his high school studies. If he stays in Australia, it is most likely that he will complete his high school studies, probably at [M] School, and the father will financially and emotionally support [X] in doing so. If [X] changes schools in Australia or in Sydney the father will also assist [X] with that transition.
Despite this recent disagreement, [X] has a history of spending time with the father and, indeed, he asked to live with the father in 2009 – an arrangement that continued for some five months. If [X] were permitted to move without any testing of the need to do so (submitted the father), [X]’s relationship with the father would be irreparably damaged. While the father freely acknowledges [X]’s strong views, he asked the Court to accept that [X] lacks the maturity to make such an important decision for himself. The mother’s failure to properly investigate [X]’s educational options in Chile cast doubts upon her attitude to the responsibilities of parenthood and her capacity to provide for [X]’s emotional and educational needs.
There is also an issue about the practical difficulty and expense in [X] spending time with the father if the mother’s interim and final applications succeed. In his written case outline, Mr Blackah states:
“There is no urgency. The child continues to [M School]. A decision as important as this should not be undertaken precipitously just to suit the mother’s convenience. To do so carries a grave risk that the court might fall into error.
The mother’s failure to properly investigate the child’s educational options in Chile casts doubt upon her attitude to the responsibilities of parenthood and her capacity to provide for his emotional and educational needs.
There is no evidence that the child has been assessed by a counsellor, psychologist or other health professional as to his emotional and psychological readiness for such a significant step. Bearing in mind that he suffers from ADHD it is submitted that this should occur.
The practical difficulty and expense of the child spending time with the father if the application succeeds is a significant issue. It is submitted that the court could draw little comfort from the mother’s assurances about sending the child back to Australia to visit the father having regard to the father’s allegations of a very significant failure to communicate on the part of the mother.
The father also alleges that the mother has failed to support the child’s relationship with him.
None of these matters have been tested and they need to be.
The nature of the child’s relationship with the father and other family members in Australia is not before the court in any reliable form, and nor [sic] is the likely effect upon him of change. It is known that in 2009 the child lived with the father for 5 months and continues to spend time and communicate with the father.
The father well understands that he is standing in the way of the child’s wishes. He does not do so for any other reason than his love for [X] and his concerns for the child’s well-being. Put shortly, he is not persuaded that the proposal has been thought through carefully and considers that it poses significant risks to the child’s education, happiness and best interests. On the evidence as it presently stands that is a reasonable position for him to take.
The child only has one father and he feels duty bound to act upon his conscience.”
Law and discussion
All parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in s.64B of the Act. Parenting orders may deal with where a child is to live, the time a child is to spend with another person or otherwise allocate parental responsibility in relation to a child. Section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Sections 60CA through 60CC of the Act deal with how the Court determines the best interests of a child. Of most relevance in the proceedings before me are the primary considerations in s.60CC(2) of the Act and the additional considerations contained in s.60CC(3) of the Act, where relevant. I will return to these considerations shortly.
The Act does not contain any presumption against a relocation order, nor is there any presumption that favours the parent with whom a child has been primarily residing. In order words, relocation cases are not a special category of parenting orders. What the Act does is to provide the Court with a structured discretion to determine what order is appropriate in the circumstances of the case.
Prior to considering the mother’s interim application to relocate, the issues of whether or not an ICL should be appointed and whether the orders sought in the father’s Response should be summarily dismissed require consideration.
Appointment of an ICL
Section 68L(2) of the Act gives the Court a broad power to order that a child be independently represented in any proceedings under the Act. In making such an order, the Court has the power under this provision to “make such other orders as it considers necessary to secure that representation” although, as expressed by Hayne J (with whom Gaudron J agreed) in the case of Re JTT [1998] HCA 44; (1998) 195 CLR 184 (“JTT”), this power must be read “in the context of the Act as a whole”.
The Court may make the order for independent representation of its own initiative if it appears that the child in question ought to be represented, or on the application by the child, by an organisation concerned with the welfare of the child, or by any other person. Where the Court makes an order for a child to be independently represented, it may request that the representation be arranged by a Legal Aid body that is a relevant authority under s.116C of the Act. I also note the provisions of reg.8.02 of the Family Law Rules2004 (Cth). That said, the Court cannot order Legal Aid to fund the independent representation of a child and nor does the Court have the power to review the administrative decisions of the Legal Aid body. (See: Heard & De Laine;Crown Solicitor for the State of South Australia (Intervener) (1996) FLC 92-675; (1996) Fam LR 315 (per Ellis, Baker and Chisholm JJ)).
Generally speaking, and subject to means test considerations, the cost of an ICL are paid by the parties to the proceedings. Practices do vary across Australia depending upon the various State-based legal aid bodies’ legislation and policies. In JTT, Hayne J, with whom Gaudron J agreed, confirmed that the Court has the power under the Act to ensure that a child can be independently represented, if necessary, by application of the Court’s power to make an interim spousal or child maintenance order or an interim adjustment of property so as to provide for the costs of such representation.
As to the role of the ICL, s.68LA(2) of the Act provides direction on the general nature of that role. The ICL must form an independent view of what is in the child’s best interest and inform the Court of that view. The ICL must also act in relation to the proceedings in what he or she believes is in the best interests of that child. Section 68LA(3) of the Act states that if the ICL is satisfied that a particular course of action is in the best interests of the child, the ICL must make a submission to the Court suggesting the adoption of that particular course of action.
The precise role of the ICL is clarified in s.68LA(4) of the Act, which provides that the ICL is not the legal representative of the child and is not obliged to act on the child’s instructions in relation to the proceedings.
The specific duties of the ICL are set out in s.68LA(5) of the Act. This section incorporates the basic elements of the role adopted by the Full Court in P & P (1995) FLC 92-615; 19 Fam LR 1. There are also national Legal Aid guidelines for the ICL which have the support of both the Family Court of Australia and the Federal Magistrates Court of Australia.
In addition, in New South Wales, the Legal Aid Commission has issued practice directions for ICLs in family law matters. As previously stated, given that the Act does not provide any statutory criteria for the appointment of a child representative, the Full Court suggested certain useful guidelines in Re K.
Summary dismissal
The Court has the necessary inherent power to summarily dismiss or permanently stay particular proceedings. A useful summary of the considerations which must dominate in the judicial mind in any exercise of such a discretion was provided by Kirby J in Lindon v Commonwealth of Australia(No.2) [1996] HCA 14; (1996) 136 ALR 251, which included the following succinct and salient principle at paragraph 14:
“It is a serious matter to deprive a person of access to the courts of law.”
Generally speaking, the power to summarily dismiss proceedings is only exercised with caution. Its usual application is where the proceedings are considered to be an abuse of the processes of the Court in that they do not disclose a reasonable cause of action. That is, where the Court is satisfied that the application is due to fail as distinct from weak or unlikely to succeed. It is not a preliminary trial of the action.
It is noteworthy that s.17A of the Federal Magistrates Act 1999 (Cth) makes specific provision for summary judgment. It states:
“(1) The Federal Magistrates Court may give judgment for one party against the other in relation to the whole or any part of the proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Magistrates Court may give judgment for one party against the other in relation to the whole or any part of proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have reasonable prospects of success.
(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.”
Indeed, reg.13.10 of the Federal Magistrates Court Rules 2001 (Cth) provides a rules-based power to summarily dismiss. It states:
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.”
In the Full Court decision of Gitane & Velacruz [2007] FamCA 183; (2007) FLC 93-309, Kay J, with whom Coleman & Boland JJ agreed, summarised the principles that should be applied with when contemplating the exercise of the power of summary dismissal in the family law jurisdiction and stated at paragraph 25:
“(1)that relief for summary dismissal is rarely and sparingly provided;
(2)that it is only available if it is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action or that it is a frivolous or vexatious one;
(3)that it is not enough to obtain to summary dismissal to show that it is a weak case;
(4)that there is a defect in the pleading and it appears that the party still has a reasonable cause of action, the Court will allow a party to reframe its pleading; and
(5)that one only summarily dismisses if it is clear that the case is doomed to fail.”
That said, in Jacobs & Vale (2008) FMCAfam 641 Jarrett FM considered a range of authorities and said at paragraph 20:
“…s.17A is a provision of general application to all proceedings in the Federal Magistrates Court. So too rule 13.10 of the Federal Magistrates Court Rules 2001 is a rule that applies to all proceedings commenced in this court. There is nothing in the Federal Magistrates Act, the Federal Magistrates Court Rules or the Family Law Act to suggest the contrary.”
In other words, the Federal Magistrates Court Act 1999 (Cth) and the Federal Magistrates Court Rules 2001 (Cth) apply to determine this issue, regardless of whether the matter is a family law case or not.
Interim applications
The decision of the Full Court in the case of Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 (“Goode”) guides the Court’s approach when making interim decisions and interim orders in respect of parenting disputes. I note the comments of the Full Court at paragraph 81 of Goode, which read as follows:
“In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
This matter is such a case. More specifically it raises the reality that the Court cannot fully determine issues of credit in the interim hearing, as the evidence being presented by the parties has not been tested by cross-examination. Even so, the Full Court stated that:
“[T]he legislative pathway must be followed.”
In other words, the relevant provisions of the Act, post the 2006 shared parenting amendments, must be followed in an interim hearing.
Parental responsibility
There is an issue of parental responsibility arising from these current proceedings. It may appear ironic that despite the mother having sole parental responsibility for [X], s.11 of the Australian Passports Act 2005 (Cth) (“the Passports Act”) still requires the father’s consent for a passport to issue, because there is a parenting order for [X] to spend time with the father. Under s.11 of the Passports Act, the consent of a parent with parental responsibility for a child is required for a passport to issue for that child unless the Court has permitted the child to travel overseas.
The definition of “parental responsibility” in s.11(5) of the Passports Act gives that term a wider meaning than under the Act such that it includes any person in whose favour a spend time order is made with respect to the subject child. Furthermore, under s.65Y of the Act, even if the mother held a passport for the child, she would not be able to take the child out of Australia without the father’s consent if an order existed that the child spend time with him unless the Court has ordered otherwise. Thus, if an order is made giving the mother sole parental responsibility for a child but providing that the child spend time with the father, then absent either the father’s consent or a court order permitting overseas travel, the mother can neither successfully apply for a passport nor take the child out of the country.
Section 61DA of the Act incorporates a presumption that the Court is required to consider when making a parenting order. That is, the Court must apply a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility. Section 61DA(2) of the Act makes it clear that the relevant presumption does not apply if there are reasonable grounds to believe that there has been abuse of the child or family violence. Of direct relevance to an interim hearing is s.61DA(3) of the Act, which states:
“When the court is making an interim order, the presumption applies unless the court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.”
Section 61DA(3) of the Act was discussed by the Full Court in Goode and at paragraph 78 the Full Court commented that this is:
“…a discretion not be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.”
In addition, under s.61DA(4) of the Act the presumption may be rebutted if its application would be contrary to the child’s best interests, those interests being determined by reference to the matters in s.60CC of the Act in light of the evidence. As stated, I will canvass the matters in s.60CC of the Act shortly. If the presumption is not applied or rebutted, then the Court must still make an order that is in the best interests of the child, again taking into account the s.60CC factors.
Given that the current order for the mother to have sole parental responsibility for [X] is longstanding, I am not satisfied that any order changing the allocation of such responsibility should be contemplated in the interim in the absence of compelling reasons to do so.
If the presumption did apply, then, under s.65DAA of the Act, the Court is required to consider whether it would be in [X]’s best interests to make an order that he spend equal time or substantial significant time with each party. Either outcome requires the Court to consider whether [X] spending equal time or substantial significant time in lieu with each of party would be in his best interests and reasonably practicable given the circumstances.
The Court is provided certain criteria to consider in s.65DAA(3) through to s.65DAA(5) of the Act. These provisions have been the subject of discussion in recent decisions in both the Full Court and the High Court.
Primary considerations: s.60CC(2)
Under s.60CC(2)(a) of the Act, I am required to consider the benefit to [X] of him having a meaningful relationship with both of his parents. At this point, let me note that “meaningful” does not mean “equal”, but it clearly signifies that both parents should be involved with their child and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is the child’s right. Consequently, the Court will, in all likelihood, need to give considerable weight to this factor at a final hearing should one be needed.
Each party has argued that the orders that they individually seek will better promote a relationship between [X] and the father. What is clear from the evidence before me is that [X]’s relationship with the father is currently strained and, consequently, there is a need for caution to ensure that the relationship is not irreparably damaged by any interim (or final) decision.
The Court is required under s.60CC(2)(b) of the Act to consider the need to protect [X] from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence. There is no doubt that it would be in [X]’s best interests to have and develop a meaningful relationship not only with the mother, but also with the father. That needs to be balanced against the imperative of protecting [X] from any physical or psychological harm. Despite one untested allegation by the father against the mother, this matter is not one where [X] has been exposed to any history of abuse or violence.
Additional considerations: s.60CC(3)
Section 60CC(3)(a): Any views expressed by the child and any other factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
This is a case where the [X]’s views are clearly before the Court.
Both parties agree that [X] wishes to go with his mother to Chile.
Ms R’s Child Dispute Conference memorandum also confirms this. Of course, the question for the Court to determine is the weight that should be given to [X]’s views. The parties have differing opinions on the weight that should be accorded. The mother asserts that [X]’s view should be given the due weight that one might expect of a child on the verge of adulthood. The father, however, questions the weight that should be given, in light of [X]’s more recent behavioural problems, his poor academic performance and his past diagnosis of ADHD.
This was an issue I asked Ms R to comment upon in her memorandum and her observations have been extracted above. I am satisfied that [X] has placed his views before the Court. Despite a prior diagnosis of ADHD, he is a Year 11 high school student and, at age 16, a young person for State law purposes. I am satisfied that I should give considerable weight to his views.
Section 60CC(3)(b): The nature of the relationship of the child with each of the child’s parents and with other persons
It would appear from the evidence that [X] has a close relationship with his mother and a somewhat strained relationship with his father. However, it does not appear that such a strained relationship has always existed. The circumstances that lead to [X] coming into his father’s care in 2009 and then leaving his care after just five months do need testing.
That said, if the proposed relocation proceeds on an interim basis, there is no real evidence whether such relocation will cause either the repair or the further deterioration of the relationship between [X] and his father. Given [X]’s age and views, it is possible that any order for [X] to stay in Australia on an interim basis will be met with disappointment and a feeling of loss given the absence of the mother. That said, it is an outcome that [X] has indeed considered. If that be the decision of the Court, [X] seeks to live with his half-siblings and not with his father. Given his age, it may be difficult to enforce an order for [X] to live with his father. Indeed, given his age, it may be difficult to enforce any order in relation to [X].
I note that [X]’s half-siblings are not parties to these proceedings and have not provided affidavit evidence. I am satisfied that [X]’s half-siblings should be put on notice about these proceedings. Indeed, the mother indicated in her submissions that they were aware of these proceedings. In addition to [X]’s ongoing relationship with both his mother and his father, the Court needs to consider [X]’s relationship with his half-siblings and other members of his extended family living both in Australia and in Chile.
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The father questions whether the mother will be willing and able to facilitate a close and continuing relationship between [X] and the father if the relocation is permitted on an interim basis. The mother asserts that the relocation may assist in repairing the currently strained relationship between [X] and the father. The mother has also proposed that there be orders for [X] and her to return to Australia in 2012 not just to face the potential final hearing of this matter, but also to provide an opportunity to [X] to spend time with his father, should he so choose, as well as with his half-siblings and extended family.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
There will be changes as to [X]’s circumstances if either the orders sought by the mother or by the father are made on an interim basis. The status quo is not an option in these proceedings, given the mother’s decision to return to her native country of Chile for employment purposes.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There will be a practical difficulty in [X] spending time and communicating with his father and his half-siblings if the mother’s proposal succeeds. Similarly, there will be difficulties in [X] spending time with or communicating with his mother if he is required to remain in Australia until these proceedings are determined on a final basis. The mother has proposed that she will fund [X]’s return to Australia in 2012 and that she will encourage communication via the internet or traditional telephone methods between [X] and the father, and presumably also between [X] and his half-siblings.
Section 60CC(3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
Given that [X] has been in the primary care of the mother since 1998 (except for a short period in 2009), there is a history in the mother’s favour of providing for [X]’s needs.
That said, the father does make some criticisms of certain decisions that the mother has made in respect of [X] since the parties separated in 1998. As stated, the reasons that led [X] to leave the mother’s care and live with the father in 2009 need to be further considered. Moreover, the Court also needs to consider what led the father to return [X] to the mother’s care after a period of just five months. There is no evidence before the Court in relation to the capacity of [X]’s half-siblings to provide for [X]’s needs, and particularly his emotional and intellectual needs, should his half-siblings feature in any “live with” arrangements decided upon by the Court.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have already referred to [X]’s apparent maturity and his apparent desire not only to travel with his mother to Chile, but also to complete his high school studies. [X]’s past diagnosis of ADHD and his ongoing treatment need further consideration. [X]’s cultural connections with both Australia and Chile also require examination.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child…
This factor is not relevant to the present dispute.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
In regard to this consideration, I would simply reiterate my earlier comments.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family
Apart from one untested allegation made by the father against the mother, there is no other evidence before me that there has been a history of family violence relevant to the parties or to [X].
Section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family…
I am not aware, nor there has there been any evidence adduced before me, that there is or has been any family violence order between the parties or impacting upon [X].
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
As this is an interim decision only, this consideration is not relevant at present.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant
[X] and his parents all desire that [X] complete his high school studies despite his less than average academic performance of late. Such an outcome is understandable, given that the completion of high school studies and the obtaining of a higher school certificate or international equivalent improve an adult’s chances of obtaining employment, an apprenticeship or entry into higher education. That said, [X] has now reached an age where his parents are not legally obliged to send [X] to school.
No order of this Court is going to require [X] to remain in school given that he has reached an age where he is legally able to leave school. If [X] were permitted to relocate with the mother prior to the final hearing in 2012, such would give the mother and [X] an opportunity of demonstrating her stated intention to enrol [X] in an international school so that he may undertake high school studies and achieve an International Baccalaureate qualification.
Conclusion
Having considered the respective applications and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied that the mother’s request to summarily dismiss the father’s application should be refused. This finding should not be seen as a predetermination of the success or otherwise of the father’s request for various parenting orders, but rather a finding that the father should be given the opportunity to participate in these proceedings. Whether any final order, parenting or otherwise, is made by this Court in respect of [X], is a matter yet to be determined.
Furthermore, the Court sees no reason for the appointment of an ICL unless further evidence comes to light that would support such an appointment. Whilst the facts may technically trigger some of the factors referred to by the Full Court in Re K, I am satisfied that [X] has put his views before the Court and I am further satisfied that the parties have the ability to put the relevant evidence before me. Subpoenas, of course, will assist in enabling [X]’s school records and medical records to be available in the event that either party wishes to put these before the Court.
I am satisfied that, in the interim, [X]’s best interests would be served by permitting his relocation with the mother to Chile. Whilst there may be some merit in referring the final question to the Family Court of Australia because the case involves an international relocation, the issues in this case are not particularly complex and the evidence to date is not particularly challenging for this Court. Moreover, [X] will turn 18 years old in just over 18 months.
There will be Orders for the mother to cause [X] to return to Australia in 2012 to spend time with the father and to enable a Family Report to be obtained. I would like the family consultant to discuss the matter with [X] and his parents and also to interview [X]’s half-siblings and the father’s partner.
There will be Orders allowing the mother to apply for a passport for [X] without the father’s permission.
There will be an Order for the mother to facilitate [X] communicating with his father and his half-siblings whilst [X] is in Chile.
The mother is also to cause [X] to be enrolled at an international school in Chile suitable for a student in his final two years of high school that would lead to the award of an International Baccalaureate or equivalent qualification that would be recognised in Australia.
As for the Final Hearing, the matter will be listed for not more than two days commencing on 2 February 2012. I do not have any dates available in January 2012. My chambers have been advised by the Family Dispute Resolution Co-ordinator that it may be possible for Family Report interviews to be arranged in the week of 9 January 2012 and for the Family Report to be released, if possible, by 25 January 2012.
There will now be Orders and Notations of the Court to reflect these reasons.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 14 November 2011
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