DONOVAN & HARGRAVE
[2012] FMCAfam 410
•3 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DONOVAN & HARGRAVE | [2012] FMCAfam 410 |
| FAMILY LAW – Children – Parenting – Interim Orders – where mother seeks to take children on holiday to Vietnam and Cambodia – best interests of the children – parental responsibility – equal shared parental responsibility – presumption to continue to apply – substantial and significant time. |
| Family Law Act 1975, ss.60CA, 61DA, 62B, 65DAA, 65DA |
| Donovan & Hargrave [2012] FMCAfam 306 Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MS DONOVAN |
| Respondent: | MR HARGRAVE |
| File Number: | PAC 1122 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 April 2012 |
| Date of Last Submission: | 3 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jamieson |
| Solicitors for the Applicant: | Gibson Howlin Lawyers |
| The Respondent: | In person |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS UNTIL FURTHER ORDER
Order 1 made on 16 December 2011 is varied so as to provide that the children [X] born [in] 1997 and [Y] born [in] 2000, are to spend time with the applicant mother as follows:
(a)From 10.00 on Sunday 8 April until 9.00 am on Wednesday 25 April 2012;
(b)From 11.00 am to 6.00 pm each alternate Sunday commencing on Sunday 13 May 2012; and
(c)From 6.00 pm each Monday until the commencement of school on Wednesday commencing on Monday 7 May 2012
For the purposes of Order 1(a) above, the father is to deliver the children to the mother’s residence on Sunday 8 April and to collect the children from the International Terminal at Sydney Kingsford-Smith Airport on Wednesday 25 April 2012.
For the purposes of Order 1(b) above, the father is to deliver the children to the mother’s residence at the commencement of the time the children are to spend with the mother and the mother is to return the children to the father’s residence at the conclusion of the time.
For the purposes of Order 1(c), the father is to deliver the children to the mother’s residence at the commencement of the time and the mother is to return the children to school at the conclusion of the time.
For the purpose of order 1(a), the mother is permitted to take the children [X] and [Y] out of the Commonwealth of Australia for a holiday in Vietnam and Cambodia between 8 April and 25 April 2012.
The Registrar of the Federal Magistrates Court is to deliver all and any passports in the names of the children [X] and [Y] to the mother by 4.00 pm today.
The mother must return the children’s passports to the Registrar by 4.00 pm on Friday 27 April 2012.
Whilst the children [X] and [Y] are spending time with the mother as provided by Order 1(a):
(a)The mother is to encourage and facilitate telephone and email communication between the children [X] and [Y] at reasonable times and in any event on at least one (1) occasion each week;
(b)The mother is restrained from discussing these proceedings with either of the children [X] and [Y] or asking either of the children to state any opinion about with whom they may wish to live or permitting any third person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Donovan & Hargrave is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 1122 of 2009
| MS DONOVAN |
Applicant
And
| MR HARGRAVE |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application in a case seeking interim orders. The application is brought by the mother and she seeks a variation of the parenting orders that this Court made after a hearing in December 2011. The orders were in fact made on 16th December. The mother seeks variation of the orders so as to provide that she may take the children, [X] and [Y], out of Australia for the purpose of a holiday between 5th of this month and 25th of this month. The holiday would be in Vietnam, which is the land of the parties’ birth, and also in Cambodia.
The mother also seeks a variation to the times when she spends with the children on Sundays and a variation to the time she spends with the children on the Mondays until the Wednesdays. Those variations are relatively minor and indeed the time the mother seeks on the Sunday seems to have been altered by only half an hour. I am not satisfied any evidence has been shown as to why there needs to be that change, nor did I hear submissions on it.
It is more important, particularly for the purposes of the proposed holiday out of Australia, that the mother seeks the father deliver the children to her home and collects the children from the international airport upon their return. She also seeks that the father should deliver the children to her home at the commencement of the time that she spends with him on other occasions and she will return them either to the father’s home or to the school. Clearly, the mother seeks an order that the children should be permitted to leave the Commonwealth of Australia and travel overseas.
The Registrar of the Court, it is requested, should release the children’s passports and, indeed, counsel for the mother submitted that for the purpose of obtaining visas, the mother will need to obtain the passports today rather than on Thursday, 5 April. That order is uncontroversial. The mother seeks what is, in effect, a self-enforcing recovery order in the event of non compliance by the father with these orders. The independent children’s lawyer has been less than enthusiastic about such an order and it is a matter of some concern.
The mother seeks an order that whilst the children are with her and they are away, that she would encourage and facilitate phone and email communications between the children and their father. There is also a formal order under the provisions of section 65DA and section 62B about the obligations that these Orders create. That is a formal order and it is not necessary for this Court to make that order specifically.
The mother has filed an affidavit in support of her application. The father has filed two affidavits. Essentially, despite the fact that there has been a considerable degree of antagonism between the parties over such things as the mother’s time with the children and, indeed, the Court handed down earlier today its fourth decision in proceedings between the parties, and this decision will be the fifth, the father consents and, from his email communication, consents with some enthusiasm to the concept of the children spending time with their mother on a holiday in Vietnam.
His concerns are about the details and, in fact, he points out that he has arranged a birthday party for the child [X] on Saturday, which is 7 April, and I note that [date omitted] was [X]’s birthday. His suggestion is [X] and [Y] should go to their mother on the Sunday, noting that they are due to fly out on the Monday. It has been submitted by counsel for the applicant mother that the children could go to their mother beforehand then go back for the party on the Saturday and then go back to their mother on the Sunday. I am not persuaded that this is necessarily helpful.
The proposal generally for the children to spend time with their mother on a holiday overseas meets with the approval of the Independent Children’s Lawyer as being in the best interests of the children. It is not hard to see why she would form that view and indeed I am persuaded that it would be a beneficial experience for the children to encourage their mother to Vietnam where the children have extended family such as grandparents. The Independent Children’s Lawyer, however, has cautioned, noting the history of this matter, that the mother should not use that time to discuss these proceedings with the children and indeed I am of the view that she should not. It is not an opportunity for her to discuss with the children with which parent they want to live. It should be a holiday, pure and simple. And indeed, Mr Jamieson of counsel has suggested that a restriction should also apply to any third person.
The question of the father delivering the children to the mother on certain occasions has been the subject of some submissions before the Court today. I view this matter in the context of previous proceedings, including the earlier decision handed down today, Donovan & Hargrave[1], which is the fourth judgment, as I said, relating to some contravention proceedings. The hearing before Christmas dealt with some concerns as to whether the father in fact encouraged and facilitated the children’s relationship with their mother.
[1] [2012] FMCAfam 306
It is fair to say that his support for the holiday in Vietnam is evidence of a willingness on his part to in fact encourage and facilitate the relationship with their mother. I am of the view that on certain occasions, especially prior to the holiday starting, if the father were to deliver the children to the mother’s home, that would act as a very clear indication to them that he is in fact supporting the Court orders. In my view, that would assist the children and remove some possible confusion as to what they should do and would, one hopes, be supportive of the relationship between the children on the one hand and each parent on the other.
These are interim parenting proceedings. Section 61DA of the FamilyLaw Act requires the Court to consider the application of the presumption that it is in the best interests of the children for their parent to have equal shared parental responsibility and indeed I made such an order on 16 December 2011. The Full Court of the Family Court reminds us in Goode v Goode[2] that this is a matter that should be considered and indeed it should be considered even if the matter is not specifically raised.
[2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
I have considered the question of equal shared parental responsibility and I consider that it is inappropriate to make any change to the previous order that was made on 16 December, so the presumption will continue to apply. When the Court is making parenting orders, it is required by section 60CA of the Family Law Act to regard the best interests of the children as the paramount consideration. The Court does that by considering the matters set out in subsection 60CC(2), the primary considerations, and 60CC(3), the additional considerations. I have considered those matters.
I have also considered the requirement of section 65DAA of the Family Law Act. Notwithstanding the fact that the presumption of equal shared parental responsibility will continue to apply, this is not a matter where the Court would find that it is in the best interest of the children to make an order that they spend equal time with each parent. Whether or not the orders as varied amount to substantial and significant time with the mother is perhaps the subject of argument but noting the proposal endorsed by the father, to his credit, that the children would spend a period of time on a holiday away with their mother in Vietnam, it appears to me to be getting closer to the concept as set out in subsection 65DAA(2) of the Family Law Act.
Having taken all those statutory matters into consideration, I am satisfied that it is in the best interests of the children that they should accompany their mother on a holiday out of Australia, particularly to Vietnam but also to Cambodia, and I note the father’s endorsement of that. The mother seeks that the children should be with her from Thursday, 5 April but the father has raised the practical problem of [X]’s birthday party on the Saturday. That is a real issue. The proposal that the children should go to their mother then back to their father for the birthday party and then back to their mother does not appear to me to be in the children’s best interests.
It involves a lot of travelling, admittedly a relatively short distance, but also a lot of disruption. In my view, the children should go into the care of their mother on Sunday, 8 April. That would, in my view, noting the submissions of the independent children’s lawyer, allow a reasonable amount of time for the children to discuss with their mother the plans for the trip away. I note that the flight is scheduled to leave Australia for Ho Chi Minh City the following morning. I am also of the view that it is not unreasonable for the father to collect the children upon their arrival at the international terminal in Sydney on Wednesday, 25 April. That is a public holiday, namely Anzac Day.
The father would not be required to attend at his place of employment. He is a [omitted] by profession and it is a matter of public knowledge that [workplaces omitted] are not usually open on Anzac Day. The father has expressed some concerns about spending time coming to Court and the fact that it costs him money to do so. As we are dealing with a public holiday on this occasion, that consideration should not arise. But I am also of the view that it is beneficial and in the best interests of the children for the father to deliver the children to the mother’s residence at the commencement of the time that the children spend with her because, as I said, it is a positive indication to the children of the father’s endorsement of the fact that that is what is going to happen as provided by the Court orders.
I am not prepared to make a self-enforcing recovery order. In my view, such provisions are dangerous and should only be considered in the most extreme circumstances. I consider that the Court should exercise caution in issuing recovery orders and should deal with these matters on a case by case basis. I am of the view that the mother should be able to obtain the children’s passports today but she would need to return them by 4.00 pm on Friday, 27 April which is after she has returned the children. The mother should encourage the children to telephone and email their father whilst they are away. That should be done at reasonable times but, in my view, it should be on at least one occasion in each week. I am also strongly of the view that it is in the best interests of the children that the mother should be restrained from discussing these Court proceedings with either of the children or asking either of the children to state any opinion about with whom they wish to live or that she should be restrained from permitting any third person to do so.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 3 May 2012
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