DRJJ and KPB
[2006] FMCAfam 460
•25 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DRJJ & KPB | [2006] FMCAfam 460 |
| FAMILY LAW – Children – relocation to Beijing for a specific period – benefit from attending school and experiencing the culture in China – best interests of the child – the freedom of a parent – wishes of the child – extended paternal family – unwillingness of parent to facilitate and encourage close and continuing relationship. |
| Family Law Act1975, ss.60B, 60CA, 60CC(2), 60CC(3), 60CC(4), Part VII |
| A v A (2000) FLC93-035 H v L (2000) FLC93-062 |
| Applicant: | DRJJ |
| Respondent: | KPB |
| File number: | MLM8498 of 2004 |
| Judgment of: | Morcombe FM |
| Hearing date: | 23 August 2006 |
| Date of last submission: | 23 August 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 25 August 2006 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
ORDER
That the application filed 14 July 2006 and all outstanding applications be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
MLM8498 of 2004
| DRJJ |
Applicant
And
| KPB |
Respondent
REASONS FOR JUDGMENT
Introduction
I deliver my reasons and judgment in this matter. I do so by way of providing some very detailed reasons. The introduction and background to this matter is that the parties, Mr DJ and Ms KB, the mother and father, are the parents of one child.
Orders made 11 April 2005
Proceedings were issued in Melbourne by application of the mother filed 15 October 2004. Final parenting orders were made by Hartnett FM on 11 April 2005 and I note that each party was represented by counsel and that the orders were made by consent.
The orders, made on 11 April 2005, relevantly provided, inter alia, as follows:
“1.……….
2. That the child live with the mother.
3. That the mother have sole responsibility for the day to day care welfare and development of the said child, save for contact periods when the father should have same.
4. That the mother be permitted to relocate with the said child to Queensland forthwith;
5. That the father have contact to the said child as follows:
(a) one-half of the long summer vacation and the midyear school term holidays (Queensland);
(b) from the first Saturday to the second Wednesday of the first and third school term holidays (Queensland);
(c) at times to be agreed in Queensland on the father giving 21 days notice of his intention to travel to Queensland and being a minimum of two nights contact in any term;
(d)by the father telephoning the child once each week;
(e) in the event the parties reside within 200 kilometres of each other:
(i)each alternate weekend at times to be agreed;
(ii) for one-half of all school holiday periods;
(f)as may otherwise be agreed.
6. Contact pursuant to paragraph (5)(a) and (b) hereof be aligned as much as possible with the Victorian school holidays;
7. That for the purposes of the child travelling to Victoria for contact:
(a)the parties arrange direct flights;
(b) the father pay all airfares save for the mid year term holiday return airfare which should be paid by the mother.
8.That either party be at liberty to take the said child overseas for a holiday at times to be agreed provided:
(a)the proposed travelling party give the other party 30 days notice in writing of their intention so to do;
(b) the proposed travelling party provides to the other party full particulars of the proposed travel and a copy of the child's return air ticket;
(c) the non-travelling party shall have leave on short notice to apply to the Court to vary or discharge this paragraph of these orders.
9. The mother have leave to apply to the Court with respect to any proposals to take the child overseas in connection with the mother's future employment or study.
10.For the purpose of contact pursuant to paragraph 5(a) hereof the father’s contact period alternate between the first and second halves of the summer vacation commencing with the second half in 2005/2006.
11. That each of the parties do all things necessary to effect registration of the father as the father on the child’s birth certificate.”
They are the relevant paragraphs of that order.
The mother and the child reside at S in Queensland and the father resides at S in Victoria. The father has re-partnered with Ms SR (S) and they are the parents of one child presently 4 years of age.
The mother seeks to relocate to Beijing for a specific period with the child, to teach at Beijing University. She proposes that the child attend school in Beijing.
The father wishes for the child to remain living in Australia so that she can continue to spend time with him pursuant to the existing order.
It is clear that the child is much loved and well cared for by her mother. This is quite properly acknowledged by the father in an enthusiastic way. It is equally clear that the father also loves the child and wishes to spend as much time with her as possible and also wishes for her to know him and be part of his life together with S and T.
The father concedes that the child will benefit from attending school and experiencing the culture in China.
The mother and the father each agree that this matter be determined now by way of final order.
Orders sought by the mother
The orders sought by the mother are particularised in her application filed on 14 July 2006 as follows:
“1.That all extant orders be discharged.
2.That the mother and the child be permitted to relocate to China to fulfil an employment contract at Beijing University commencing September 1 2006.
3.That the mother be permitted to further pursue her overseas employment contracts as needed in order to be more employable and to provide a life for herself and her daughter;
4.That the child live with the mother and the mother be solely responsible for the child's long term day to day care and development.
5.That the child be permitted to leave the Commonwealth of Australia in the care of the mother to travel and reside overseas for a minimum of two years.
6.That the respondent spend time with the child for the benefit of the child and that time spent be determined by this Honourable Court taking into consideration the private sperm donor agreement between the parties.
7.That the respondent be responsible for the full cost of all travel and communication and that where possible all flights be direct flights and that the child accompanied on international flights until she is at least 12 years of age.
8.That in the event that the mother secures a second contract either in China or another country as required for recognition in tertiary secondary institutions in Australia that the same contact orders apply those being a one month return to Australia at three weeks with the respondent and one week with maternal relatives or as determined by this Honourable Court.
9.Such further order as this Court deems appropriate.”
I note that this is the first time that the mother has sought to be responsible and solely responsible for the child’s long term and day to day care and development.
I further note that the mother’s contract in Beijing is for one year only.
Orders sought by the father
The father by his response filed on 14 August 2006, seeks the following orders:
“1.That the application of the mother to discharge the existing parenting orders regarding the child and to substitute orders permitting the mother to take the child out of Australia to live overseas be dismissed.
2.That in the event that the Court makes orders that would in effect permit the mother to take the child out of Australia that it be on the following basis:
2.1That the mother first provide evidence to the Court of a concluded and executed contract to work overseas and evidence that she has obtained appropriate accommodation in the city of the location of such work;
2.2That the child live with the respondent father for the period of the first school term following the mother's commencement of her employment overseas;
2.3That any order permitting the child to live overseas with the mother be limited in time to the period of the mother's work contract and that it be a condition of any such order that the mother then return the child to Australia;
2.4That the applicant mother provide security in the sum of $80,000 prior to the child living Australia for the father's potential costs and expenses in the event that the mother is in contravention of orders fails to return the child to Australia on or before the date she is ordered to do so;
2.5That the respondent father spend time with the child while she is overseas in the country of the child's residence for periods of one to two weeks up to a total of five weeks per year. The father to give not less than one week's notice of his intention to exercise such contact;
2.6In the event that the mother is permitted to take the child out of Australia for a period in excess of one year, that there be a provision for the child to spend time with the father in Australia for four weeks in each year after the child's first year of residence outside of Australia with the father and the mother to share equally the travelling expenses of the child in relation to such contact;
2.7That upon the expiration of the period to which the above orders apply the final orders made on 11 April 2005 be reinstated.
3.Such other orders as may be necessary to ensure that the issues of which parent the child lives with and the time the child spends with each parent remain within jurisdiction of the Australian Court.”
Legal principles
The principles governing the case are set out in the Family Law Act 1975, hereinafter called "the Act", and s.60CA requires that I must regard the best interests of the child as the paramount consideration.
In determining what is in a child's best interests I must consider the matters set out in s.60CC. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child's parents, and the second is the need to protect the child from physical or psychological harm or from being subjected or exposed to abuse, neglect or family violence.
The Act describes these considerations as primary and as a note to s.60CC points out, are consistent with the first two objects of Part VII as stated in s.60B. Accordingly, I give them full and careful consideration.
I am also required to take into account the 13 additional considerations set out in s.60CC(3) and I do that. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other parent in fulfilling his or her responsibilities. That is required in accordance with s.60CC(4). I will also be guided by s.60B.
Documents relied upon
The mother relies upon the following documents:
1. Application filed 14 July 2006.
2. Affidavit of the mother filed 14 July 2006.
3. Affidavit of the mother filed 21 august 2006.
4. Amended application.
The father relies upon the following documents:
1.Response filed 14 August 2006.
2.Affidavit filed 14 August 2006.
3.Affidavit of Ms Fraser, psychologist, filed 25 July 2005.
Background facts
I have accepted and taken into account the following facts:
(a)the mother is aged 43 being born in 1963;
(b)the father is aged 41 being born in June 1965;
(c)the parties had a relationship from 1993 until late 1996, that is the mother’s position; and
(d)the father's position is the relationship, even after that time, continued at various times and finally ended in the year 2000.
The parties travelled around Australia from when the child was about three months until she was about 1 year old and the father and the mother spent their full time with the child during that period.
The mother moved to Noosa in March 2000 and during this time the father travelled to Noosa every school holidays to see the child. The mother returned to Victoria in late 2004 to undertake study at Monash University and the father spent more time with the child in that time particularly on weekends.
An order was made on 11 April 2005 and the father has spent time with the child in accordance with that order, except that telephone contact has been difficult and limited because the mother gets distressed when the father telephones and claims that the child gets distressed as a result of her mother’s distress.
The mother is a qualified high school teacher in the area of psychology.
The father completed a Diploma of Education in 1993 and worked as a teacher for five years. When the child was born the father ceased teaching and commenced building bird houses. He is a local counsellor and also works as an emergency teacher from time to time.
The child has expressed a wish to live with her mother and see her father as much as possible. That information comes from the report of Ms F. I will refer to the weight I give to the expression of those wishes later in this judgment.
The father in his case gave evidence and relied upon his affidavit filed 14 August 2006 and the affidavit of Ms F filed 25 July 2005 annexing her report. The father was cross-examined by the wife, and Ms F was not called to give evidence.
The child’s relationship with her parents
The mother in her case gave evidence and relied upon her affidavit filed 14 July 2006 and 21 August 2006. It is clear that the child has a significant relationship with each of her parents. Her primary attachment is with the mother and both parents acknowledge this. The child also has a significant relationship with her father and his partner, Ms SR, and her half-brother, T.
The report of Ms Fraser, although it was prepared in February 2005, has assisted me in relation to the nature of the relationship of the child with the extended paternal family. I find that they play an important and fundamental role in the child's life.
The effect of the proposal of the mother is that the child will not spend time with her father for 12 months when school breaks in China between June and August 2007, that holiday period will be of eight weeks duration.
It is not practical or financially possible for the father to travel to China to be able to maintain the existing orders.
The mother acknowledges that telephone contact has not been successful, as she gets distressed, and this becomes upsetting and distressing for the child. She proposes that telephone contact be limited to one occasion per month.
The report of Ms Fraser, at paragraph 26, identifies that the father has contributed to the child's emotional balance and maturity. She goes on to say that the level of Ms B’s anger towards Mr J suggests that it will be some time before she is able to manage her responses without the intervention of the Court in keeping the best interests of her daughter at focus.
Ms Fraser recommended that Ms B undergo supportive counselling immediately. The mother gave evidence that she had three sessions of counselling and she is now assisted by her friends.
The hostility and anger towards the father by the mother was apparent during the hearing of this matter and I find that the mother does not take appropriate steps to foster the relationship between the child and her father, particularly in the area of telephone contact. The only means by which the father could communicate with the child, if she were in China, would be by telephone and/or internet.
I note that the mother sought to have an order that if the father is to telephone the child in China that he be restricted to one occasion per month because of the distress.
Telephone contact has been substantially ineffective here in Australia, as a result of the mother's distress when the father telephones and the relaying of that distress to the child. The mother has failed to take appropriate steps to remove this barrier.
Section 60CC(3)
I propose to take into account the following consideration as required by s.60CC(3):
a)the child was only six years of age when she expressed her wishes to Ms Fraser, and I give her wishes little weight because of her age;
b)I take into account that the child has a good relationship with each of her parents and with the father's partner and her half-brother;
c)I am concerned that the mother has been unable to facilitate, encourage and foster telephone contact with the father to assist in a close and continuing relationship between the child and her father. This would have a more significant effect, in my view, on the overall relationship if the child were in China. The mother refused at trial to refer to Mr J as the father and referred to him as “the biological father” or “the sperm donor”.
d)that the child would not have the benefit of the father's contribution to her emotional balance and maturity, which was referred to in Ms Fraser's report. On the other hand it is common ground that living in China and studying in China would be of significant benefit for the child;
e)the difficulty of the child in spending time with her father will substantially affect the child's right to maintain her personal relationship with her father and her half-brother, and that is a very significant potential difficulty which could not be counter-balanced by what the proposals are for the child if she went to China. The mother insisted that the father pay the whole of the cost of travel from Beijing to Australia for the child and an accompanying person. That is despite the disclosure by the mother during submissions that she was entitled to be reimbursed for one return trip to Australia each year;
f)each of the parties are able to provide financially, emotionally and intellectually needs for the child, except for the inability for the mother to put behind her any reasons for anger which she has towards the father and it has the potential, identified by Ms Fraser, to cause emotional difficulties for the child;
Subparagraph (g) is not relevant; (h) is not relevant; (i) is not relevant; (j) is not relevant; (k) is not relevant; (l) is not relevant; (m) is not relevant.
Section 60CC(4)
I take into account that the mother has failed to facilitate the father communicating with the child by telephone. S.60(4)(b)(iii)
Conclusion
This is a difficult and finely balanced case. Each of the parties has a close and loving relationship with the child and wishes the best outcome from these proceedings for her. I take into consideration also the remarks of the Full Court of the Family Court in A v A (2000) FLC 93‑035 at 108, and H v L (2000) FLC 93-062 at 77, which includes the proposition that:
“The ultimate issue is the best interests of the child and to the extent that the freedom of a parent impinges upon those interests then it must give way.”
Taking all of those matters into consideration and balancing these considerations, I have come to the conclusion that it would not be in the best interests of the child to live in China, as sought by the mother, and accordingly I will make an order dismissing all extant applications.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Morcombe FM.
Associate: Ms H Priest
Date: 25 October 2006.
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