Denning and Denning

[2019] FCCA 1779

FEDERAL CIRCUIT COURT OF AUSTRALIA

DENNING & DENNING [2019] FCCA 1779

Catchwords:
FAMILY LAW – Parenting – shared care – watchlist orders.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Cases cited:

Kaur & Kaur [2014] FCCA 2843
Kuebler & Kuebler [1978] FamCA 26
Line & Line [1996] FamCA 145

Applicant: MR DENNING

Respondent: MS DENNING

File Number: MLC 3940 of 2017

Judgment of: Judge Harland

Hearing date: 7 May 2019

Date of Last Submission: 7 May 2019

Delivered at: Melbourne

Delivered on: 7 May 2019

REPRESENTATION

Counsel for the Applicant: Ms Metherell

Solicitors for the Applicant: Purcell & Purcell

Counsel for the Respondent: Ms Goldthorp

Solicitors for the Respondent: Barbayannis Lawyers Pty Ltd

ORDERS

1. The Husband and Wife have equal shared parental responsibility for the children [X] born … 2013 and [Y] born … 2015 (“the children”). 

2. The children live with the Respondent Wife.

3. The children spend time with and communicate with the Husband as follows:-

   (a)Each alternate weekend from 3.30pm or the conclusion of school  Friday (with changeover to take place at school) until 5.00pm Sunday;

   (b)Each Wednesday from the conclusion of kindergarten/school or 3.30pm until 6.00pm, with changeover to occur at Suburb A Library at the conclusion of time;

   (c)That if the children are not already in the Husband’s care on Father’s Day, they spend time with the Husband from 5.00pm on the Saturday preceding Father’s Day until 5:00pm on Father’s Day, with such time to suspend the time the Wife would otherwise be due to spend with the children;

   (d)From the conclusion of school/kindergarten or 3.30pm until 6.30pm on the children’s birthdays and the Husband’s birthday, if the children are not otherwise in the Husband’s care, with changeover to occur at Suburb A Library unless otherwise agreed;

   (e)For Christmas:

   (i)From 4.00pm 24 December 2019 until 4.00pm 25 December 2019, and each alternate year thereafter;

   (ii)From 4.00pm 25 December 2020 until 4.00pm 26 December 2020, and each alternate year thereafter;

IT IS ORDERED BY THE COURT THAT:

(f)During Term 3 2019, Term 1 and Term 2 2020 school holiday periods for 2 periods of 3 consecutive nights as agreed and failing agreement:

(i)In week 1 from the conclusion of the school term or 5pm Friday to 5pm Monday and

(ii)In during the middle weekend of the holidays from 5pm Friday to 5pm Monday.

(g)During the 2019/2020 long summer school holiday period, each alternate week for periods of 4 consecutive nights as agreed, and failing agreement, the Husband’s alternate weekends are extended to take place from 5pm Friday to 5pm Tuesday.

(h)During Term 3 2020, Term 1 and Term 2 2021 school holiday periods for 5 consecutive nights at dates to be agreed and failing agreement from 5pm on the middle Friday until 5pm the following Wednesday.

(i)During the 2020/2021 long summer holiday period each alternate week for a period of 5 nights as agreed and failing agreement the Husband’s alternate weekends are extended to take place from 5pm Friday to 5pm Wednesday.

(j)Commencing Term 3 2021 and in all school term holidays thereafter for half of all school term holidays as agreed and failing agreement the first half.

(k)Commencing the 2021/2022 long summer holidays and each long summer holidays thereafter, on a week about basis as agreed and failing agreement commencing the first week in odd numbered years and commencing the second week in even numbered years.

IT IS ORDERED BY CONSENT THAT:

(l)By telephone at all reasonable times the children are in the Wife’s care;

(m)At such other times that may be agreed between the parties.

1. The Husband’s time be suspended as follows:

   (a)That if the children are not already in the Wife’s care on Mother’s Day, they spend time with the Wife from 5:00pm the day preceding Mother’s Day until 5:00pm on Mother’s Day with such time to suspend the time the Husband would otherwise be due to spend with the children;

   (b)From the conclusion of school/kindergarten or 3.30pm until 6.30pm on the children’s birthdays and the Wife’s birthday, if the children are not otherwise in the Wife’s care, with changeover to occur outside the Husband’s residence;

   (c)By telephone at all reasonable times the children are in the Husband’s care;

   (d)At such other times that may be agreed between the parties.

2. For the purposes of Order 3, school holiday periods are defined as commencing on the last day of the school term until the day before the commencement of the new school term, and the Father’s term time recommence on the first weekend of the school term.

IT IS ORDERED BY THE COURT THAT:

1. Unless otherwise agreed in writing or otherwise set out in these Orders, when changeover does not take place at the children’s kindergarten or school, it shall take place at Suburb A Library at the commencement of the Husband’s time with the children and at Train Station B at the conclusion of his time with the children.

IT IS ORDERED BY CONSENT THAT:

1. The Husband shall be in substantial attendance during his time with the children for the next twelve months and if he has to work during that time he shall advise the Wife as to who is caring for the children.

2. The Father and Mother use a Parenting Application (MyMob or such other application as agreed) for communication between them in relation to all matters pertaining to the children’s health, education, care, welfare and development.

3. In the event the children are sick when they are due to spend time with the Husband:

   (a)the Wife is to notify the Husband by way of text message at least 4 hours prior to changeover that the children will not be available to spend time;

   (b)within 48 hours of such notification,

   (i)the Wife is to provide the Husband with a medical certificate to evidence the child/s medical condition; and

   (ii)the Wife provide the Husband with three proposed dates for make up time and the Husband make his selection from those dates.

4. Each parent:

   (a)Be at liberty to obtain school/kindergarten reports, notices, newsletters, photographs and the like for the children;

   (b)Be at liberty to attend separate parent-teacher interviews for the children;

   (c)Be at liberty to attend all school/kindergarten activities, functions and extra-curricular activities to which parents ordinarily attend;

   (d)Keep the other parent advised via MyMob or such other application as agreed, at all times, of their current residential address, email address, landline telephone number (if applicable) and mobile telephone number, and notify the other within 7 days of any change;

   (e)Keep the other parent advised via telephone or SMS text message, and as soon as practicable, of any medical emergency, serious illness or injury suffered by the children while in that party’s care, which requires treatment or consultation with a medical practitioner;

   (f)Keep the other parent advised by MyMob or such other application as agreed, at all times, of the names and contact details of all medical practitioners treating the children;

   (g)Keep the other parent advised of any medical appointment made for the children or either of them, with the other parent to be at liberty to discuss the children’s care with the relevant professional;

   (h)Have liberty to provide a copy of these Orders to any school, kindergarten or child care at which the children or either of them attends, or to any medical practitioner upon whom the children or either of them attends.

5. The parties by themselves, their servants and/or agents be restrained from:

   (a)Denigrating each other in the presence or within hearing of the children;

   (b)Discussing any matter pertaining to these proceedings with or in the presence or hearing of the children.

6. In the event either parent travels interstate with the children, they shall let the other parent know details of the travel, destination and accommodation 7 days in advance of such travel.

IT IS ORDERED BY THE COURT THAT:

Airport Watchlist and International Travel

1. Orders 2,3,4 and 5 of the Orders dated 26 April 2017 be discharged.

2. The Children [X] born … 2013 and [Y] born … 2015 be and are hereby removed from the Airport Watchlist.

3. The Husband and the Wife be permitted to travel overseas with the children provided that:

   (i)The travelling parent provide the non-travelling parent with a detailed itinerary of the intended travel, including all dates and times of travel, and intended destinations at least 60 days prior to departure.

   (ii)The period of travel is no more than four consecutive weeks each calendar year for the Wife and no more than two consecutive weeks per calendar year for the husband.

   (iii)A copy of the following is provided to the non-travelling party at least 28 days prior to departure:

   (a)return flight tickets for the travelling party and the children;

   (b)contact details for the travelling party and any family members whom the children are to stay with;

   (c)details, including addresses and contact numbers, for all accommodation at which the travelling party intends to stay in , whether paid accommodation or the homes of family or friends.

   (d)Proof of comprehensive travel insurance for the children for the duration of the intended travel.

   (iv)At least 28 days prior to departure the travelling party provide to his or her solicitor;

   (a)the sum of $50,000 or;

   (b)a signed Transfer of Land in registerable form to the non-travelling party for the transfer of property in the name of the travelling party which has equity of at least $50,000

   to be held on trust until the travelling party returns with the children to Australia (“the surety”)

4. If the travelling party fails to return the children or either of them to Australia in accordance with the travel itinerary provided in accordance with Order 15(i) herein (save for circumstances beyond his or her control such as a delayed flight) the travelling parent’s solicitor be authorised to immediately transfer the surety to the non-travelling parent’s possession in order to fund proceedings to seek the return of the children to Australia.

5. In order to comply with Order 16 herein the non-travelling party be permitted to sell the relevant property and utilise proceeds in the sum of $50,000.

6. Each parent do all acts and things as required to obtain, maintain and renew the children’s passports for the children with the costs to be shared equally.

7. In the event either parent wishes to travel to Country D with the children then the travelling parent shall make application for appropriate travel Visas for the children and the non-travelling parent shall do all things required to assist in obtaining such Visas for the children.

8. The Wife shall hold the child [X]’s passport and the Husband shall hold the child [Y]’s passport and within 7 days of compliance with Orders 15(i)-(iv) inclusive herein the non- travelling party shall provide the passport they hold to the travelling party such passport to be returned to the non-travelling party within 7 days of return from international travel.

9. In the event international travel interferes with the children’s time with the non-travelling parent then makeup time will occur prior to and following the period of travel.

10. The non-travelling party is at liberty to telephone the children at least twice a week during the period of travel at reasonable times.

11. The Mother be permitted to travel for two weeks each year with the children until the end of Term 3 2021 holiday and thereafter in accordance with Order 15(ii) herein.

IT IS ORDERED BY CONSENT THAT:

1. Pursuant to S65DA(2) and S62B, 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 the Fact Sheet annexed hereto and these particulars are included in these orders.

2. All extant applications be dismissed.

3. Orders 2, 3, 4 and 5 of the orders made on 26 April 2017 be discharged.

4. The Australian Federal Police remove the names of the [X] born … 2013 and [Y] born … 2015 from the airport watch list at all points of international arrival and departure in Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3940 of 2017

MR DENNING

Applicant

And

MS DENNING

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The parties have resolved most of the issues in dispute between them, and I made final property orders yesterday and have made final parenting orders today except with respect to three discrete issues which the parties have not been able to reach agreement about. It was the parties’ joint application yesterday that the three outstanding issues, being changeover, school holiday periods and whether or not the Watchlist order should be removed, be determined on the basis of submissions without either party being cross-examined.

3. Both Counsel supplied Chambers with their minute of orders sought with respect to those orders and also the paragraphs of the affidavits that they relied on, in addition to the family report. I have considered that material and also the helpful and detailed submissions given this morning. I do not propose to recite much of what was canvassed this morning.

4. I am not critical of the parties choosing to have these issues determined by way of submissions, and it would be well-known that it is somewhat more difficult to co-parent when the parties have had the experience of being cross-examined on issues that are very personal and sensitive. What is particularly clear from both parties is that by far and away the most important issue to them is the issue of international travel. 

5. I refer to the fact that no cross-examination has taken place because, to the extent that both Counsel referred to the material and made some criticisms of the other party with respect to the veracity, given that they have not been cross-examined, I simply cannot make any findings about those issues. I will deal with the simplest matter first, which is the changeover. There is considerable distance of some 55 kilometres between the parties’ residence. There is no dispute that the father will travel to Suburb A for the time that he spends with the children on Wednesday afternoons during school terms and also to collect the children on Fridays. 

6. He seeks that the mother share in the travel by meeting approximately halfway on Sunday afternoons and during the school holiday handovers. The mother resists this, saying she is the primary carer of the children and does the primary ferrying the children around to their various schools and other activities. The father points to the mother choosing to move a considerable distance away from where he lives. The mother says that that is in circumstances where she says she left a violent and controlling relationship and had the assistance of community services to move firstly into a refuge and then into other housing. 

7. Of course, it is common to see parents sharing changeover of children, and, of course, what needs to be remembered too is that regardless of which parent does the changeovers, the children are involved in the travel all the time. In my view, there should be some sharing of that travel. What I propose to do is to order that the mother collect the children on Sundays from Train Station B, and I think Train Station B is appropriate because it is where they have been doing the handovers to date.

8. It is one station away from Train Station E, and the mother’s evidence is the bus she catches does not go to the Train Station E, so that would involve some walking for the children. What I propose to do with respect to the holidays is to have the father collect the children from Suburb A at the beginning of his time and that the mother collect the children from Train Station B at the end of his time. That involves the mother being involved in some of the handovers but the father still having that primary responsibility. 

9. With respect to the holiday time, it is really an issue about progression of the father’s time and how quickly that progression should take place. The children are young. They are five and four, and when the matter commenced the father had not seen the children for some months and then commenced having supervised time. Time has since incrementally progressed to unsupervised daytime time, to then time with one overnight, and those increases in time have been by consent. 

10. The difference between the parties is really how quickly should the father’s time progress during school holidays. The mother seeks that the alternate weekends remain in place for the remainder of the year, whereas the father seeks that from term three of 2019 he have three consecutive nights for two periods during those holidays and then sees it increase to four and then five. The mother does not want the increase in time to commence until [Y] has started school next year. 

11. Given that the arrangements that the parents have just agreed to today sees the father’s time increase from one overnight period a fortnight to two, that would be some period of adjustment for the children, but given that both parents agree that the time between the children and the father are progressing well, I consider that it is in the children’s best interests for them to have the two periods of three consecutive nights commencing in the third term 2019 school holidays.

12. I think it is preferable to have that increase before [Y] starts school, given that that period of starting school can involve a lot of adjustments for a child. I propose that that arrangement remain in place until the third term school holidays in 2020, when it will increase to five consecutive nights, and then, from the term 3 school holidays in 2021, it should be a week-about arrangement. The mother sought an order that the father take annual leave during the time that he spends with the children during school holidays. 

13. The concern she has is really while the children are young, but I have some concerns about making an order in those terms and particularly making an order in those terms that would be in place for potentially many years. Making such an order is not practicable, given working parents do not get the same amount of leave that their children do, and the mother is going to be in that position when she finishes her study and gains employment. Now, the one thing I think we are going to check is whether or not the father agrees to taking leave for any period at all while the children are young because I think there was some suggestion that maybe there had been some discussion about that, – so if you can just get instructions.

14. Really, the most important issue to the parties is the Watchlist. Of course they come from very different perspectives with respect to that. To some extent both have a position of distrust about that, because on the one hand, the mother would see it as the father continuing to seek to exert control over her, and on the other hand, the father sees it as a real concern that the mother will use that opportunity to remain in Country D and not return to Australia.

15. As I mentioned before, parties have opted to rely on submissions, and not have each other cross-examined about those points. I have no reason to suspect that the parties are not genuine, and what their concerns are in those respective positions.

1. It certainly has been clear through the progress of these proceedings, and certainly how they began, that the parties had diametrically opposed positions, and very different perceptions. Even as recently as the family report interviews, that also makes it clear that the parties have different perceptions about each other and their roles, and some limited insight into understanding where the other party is coming from. Though, as I have indicated, they have also come a long way in recognising the importance of children having a relationship with both parents.

2. The issue of international travel, particularly when it is to a non-Hague Convention country, can be one of the issues that causes much angst for parties. The relevant case law that applies in this area is well known, being the case of Line & Line and Kuebler & Kuebler, which are often quoted, and of course there are many cases since.

3. I also refer to the decision of Kaur & Kaur that I was taken to, of my brother Brown J, which neatly summarises the principles that apply. As with any order concerning children, the best interests of the children are paramount. It is very much a case about assessing risk and balancing risk and children’s best interests. I certainly adopt Brown J’s comments with respect to the impossibility of eliminating risk altogether.

4. It is also very clear from the wording of the relevant provisions in s.60CC of the Family Law Act that the legislature has placed much emphasis on the importance of grandparents and extended family members, and also the importance of culture, to children.

5. The reality is, in this family, both parents come from Country D; both parents are now Australian citizens; but there is no doubt that the father has, for want of a better expression, deeper connections with Australia, in terms of, he has family members here, in his mother, and owns property here. But it is also, of course, true to say that, until the property settlement yesterday, the mother was not in a position to have property here, but is about to receive financial entitlement.

6. The reality also is that the mother’s family, being her parents and her brother, live in Country D, and whilst her mother has travelled to Australia previously, and it is possible for family to travel to Australia, that is not the same as children having the opportunity to experience the mother’s family in the environment where she grew up, and experiencing the culture in Country D which cannot be replicated here.

7. Whilst the children are able to, no doubt, have a close relationship with the father’s family here, that is because they have had the benefit of living in the same household with their paternal grandmother, and now currently with their aunt and cousin, the same opportunities are not available to them with respect to the mother’s side of the family.

8. Now, the mother says that her father is elderly and unwell, and not able to travel. As is apparent from the need for a case guardian to be appointed for the father’s mother in the days leading up to the trial, unfortunately, his mother is also unwell. Whilst electronic communication has bridged the distance in many real ways with respect to families living interstate and overseas, it does not replace the experience that you have with personal face to face contact. I also adopt the comments that Brown J makes at paragraphs 135 and following with respect to the importance of culture for children’s sense of identity, and the importance of being able to experience their Country D culture which is rich and diverse, as well as the benefits to children travelling internationally, particularly to spend time with family and to have an opportunity to immerse themselves in that side of their family and culture. 

9. It is of some significance that both parties come from Country D, and that the father has travelled to where the mother’s family is. It is not a situation of one parent not having any connection to the other country, not speaking the language and not being familiar with travelling in that country. However, it is a relevant factor to note that it is not a Hague Convention country and that does increase the risk of non-return. 

10. As I indicated earlier, I have no reason to believe that the father is not genuine in his fears that the mother will not return with the children at great detriment to his relationship with the children and to the importance of the children’s experience and connections with his family here. As I indicated before, it is certainly true that the father has stronger connections to Australia than the mother, but the mother has connections to Australia as well; she has taken citizenship, she is studying, and her understanding is that she has relinquished her Country D citizenship, though that is unclear.

11. So, in terms of when looking at the risk versus the interests to the children, one way of addressing that risk, which of course can never be eliminated entirely, is by requiring a surety, and both parents propose that there be a surety, the difference is in the amounts. Of course, the father’s position is that the children should remain on the Watchlist for five years until they are nine and 10, because by that age they will be able to make independent contact with the father.

12. My concern about that proposal is that it has the very real possibility of denying the children the experience with their grandparents in Country D, and in circumstances where I cannot be satisfied that there have been threats by the mother not to return, that that is justified. I note that there is reference in the father’s material to receiving letters from unknown people, and the mother identifying that as Aunty and then referring to “he’d better sign the passport applications.” 

13. Without the evidence being tested, my impression from reading the material of the parties is that that can also refer to the fact that the mother has not been able to travel to Country D for the past two years since the Watchlist order has been in place. It is certain given that initially the father was not spending time and then was spending supervised time and then day time with the children, it would not have been practicable for her to leave the children in the father’s care to do so. It may well be that her family is keen for her to travel to Country D to see family. 

14. So, in balancing these factors, in my view the children should be able to travel to Country D with both parents, but what I propose to do is then turn to the issue of surety.

15. The mother’s proposal is that each party provide a surety of $20,000 before travelling. The father seeks that a surety be given of $25,000 each for each child. I am mindful that the mother is soon to receive a sum of $270,000 in cash by way of property settlement, and in the context of that sum in the form that it is in, $20,000 is not a significant amount. What I propose to do is make the order for surety, but substitute the sum of $50,000 for the sum of $20,000 that appears in the mother’s minute.

16. It also occurs to me that it may well be that in the future the parties may want to give a charge over real property as opposed to a sum of $50,000, which applies to both of them provided that they have got the equity in that property. I think it is appropriate to include that order as part of this surety order. I am not going to make order 9 of that proposed minute, which enables the mother to get a passport without the father’s consent if he does not sign the passports. That kind of order is made when there is parents not involved at all, or a parent who has been obstructive, and I am not satisfied that there should be that order, particularly when the parents have agreed on so much and have agreed on equal shared parental responsibility.

17. So, otherwise, order 11 is simply providing for your client to hold [X]’s passport and the father holding [Y]’s passport, except for the purposes of travel.

18. Of course, order 12 is providing for the makeup time, which is appropriate. 

19. The only other qualifier that I would put – and I raised this concern during submissions – is that I am concerned that four weeks, when the children are so young and when they are just developing, this increase in time with the father is too much. What I propose to do is to make it that the mother be permitted to travel for two weeks with the children up until term three 2021 school holidays. So, once the children are spending seven nights with dad, then the four weeks and for either parent to travel, bearing in mind that there is the makeup time issue. I think it is appropriate given the children’s ages and where they are at with respect to increasing their time with their father that it not be four weeks until that is more established.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 26 June 2019