EADENS & MADRONA

[2020] FCCA 1537

FEDERAL CIRCUIT COURT OF AUSTRALIA

EADENS & MADRONA [2020] FCCA 1537

Catchwords:
FAMILY LAW – Parenting – parental responsibility – mother to have sole parental responsibility – child to live with mother and spend time with father – best interests of child.

Applicant: MR EADENS

Respondent: MS MADRONA

File Number: AYC 177 of 2018

Judgment of: Judge Obradovic

Hearing date: 16 March 2020

Date of Last Submission: 7 April 2020

Delivered at: Parramatta

Delivered on: 15 June 2020

REPRESENTATION

Counsel for the Applicant: Ms Dart

Solicitors for the Applicant: Belbridge Hague

Appearing for the Respondent: In person

ORDERS

1. All previous parenting orders with respect to the child X born in 2014 are discharged.

2. The Court requests that the Australian Federal Police remove the name of the child X born in 2014 from the Airport Watch List at all points of international arrivals and departures in Australia.

3. That the respondent mother shall have sole parental responsibility for the child X born in 2014, but when making a decision about any long term matters, the mother shall:

   (a)Inform the father in writing of the decision to be made;

   (b)Invite comments from the father;

   (c)Take such comments into account when making the decision;    and

   (d)Inform the father in writing of her decision.  

4. That the child shall live with the mother.

5. That the child shall spend time with the father as agreed and failing agreement:

   (a)For one half of the Term 1, 2 and 3 school term holidays:

   (i)Commencing at 1:00pm on the first Saturday and concluding at 1:00pm on the middle Saturday in 2020 and each even numbered year thereafter; and

   (ii)Commencing at 1:00pm on the second Saturday and concluding at 1:00pm on the last Saturday in 2021 and each odd numbered year thereafter.

   (b)For one half of the Christmas school holidays:

   (i)Commencing at 1:00pm on the first Saturday after the last day of school in December 2021 and each alternate year thereafter and concluding at 1:00pm on the middle day of the Christmas school holidays;   

   (ii)Commencing at 1:00pm on the middle day of the Christmas school holidays commencing December 2020 and each alternate year thereafter and concluding at 1:00pm on the Saturday before the first day of school; and  

   (iii)For calculating the number of days in the Christmas school holidays, the first day thereof shall be the day after the last day of school in that academic year, and the last day thereof shall be the last Saturday before school starts in the immediately following academic year. If there is an uneven number of nights, then the father shall have one additional night with the child at the end of his time when such time begins the day after school ends, and at the beginning of his time when that time begins on the middle day of the Christmas school holidays.

   (c)Subject to these orders, the weekend before X's birthday if X's birthday is on a weekday and the weekend of X's birthday pursuant to order (d) below.

   (d)Upon no less than 30 days' notice in writing to the mother the father may elect to spend up to three additional weekends or part thereof per school term with X, such time may include X’s birthday, the Father's Day weekend but not the Mother’s Day weekend, as follows:

   (i)in the Sydney area:

   A.from after school on Thursday or 3pm if there is no school until 3pm on Sunday;

   B.If X spends time with the father from Thursday on a school day, then the father shall ensure that X attends school on the Friday if there is school on that day; and

   C.The father shall ensure that X attends any of her usual extra-curricular activities.

   (ii)in the Town A area and subject to order (6) below:

   A.From after school on Friday or 3pm if there is no school until 3pm on Sunday; 

   B.If there is no school on the Friday and/or the Monday then time may commence on the preceding Thursday after school or 3:00pm and time may conclude on the following Monday at 3:00pm;

   (e)The mother shall not refuse the father's election on more than one occasion per school term and if time is refused then within 48 hours of refusal, the mother shall offer an alternative weekend within 4 weeks of the father's original elected date.

6. Changeover shall be as agreed and failing agreement:

   (a)The parties shall meet at D Park, B Street, Town C in the State of New South Wales;

   (b)If the father wishes to pay for X to fly, from Sydney to City E and/or City E to Sydney then:

   (i)X shall not fly as an unaccompanied minor until she is at least 8 years of age, and otherwise subject to airline terms and conditions;

   (ii)Until she reaches 8 years of age, X shall be accompanied on all such flights by the father or such other person as agreed between the parents in writing;

   (iii)The father shall give the mother not less than seven days' notice of his intention to fly X to or from City E;

   (iv)The father shall provide a copy of the confirmed flight details; 

   (v)The mother shall ensure that X is delivered to the departing flight and/or collected from the arriving flight at the relevant time;

   (vi)If X is not presented for the flight booked and paid for by the father then the mother shall book and pay for X to take the next available flight to City E; and

   (vii)The mother and the father shall inform each other immediately they become aware that a flight is cancelled or delayed, when X has boarded a flight and when X has arrived at her destination.

7. The father and the mother shall communicate with X via Skype on Wednesdays and Fridays when she is not otherwise in their care:

   (a)Between 5:30pm and 6:00pm on Wednesdays and Fridays with the parent receiving the benefit of the call to initiate the call;

   (b)On special occasions if X is not otherwise spending time with that parent, including:

   (i)X’s birthday

   (ii)G’s birthday;

   (iii)H’s birthday;

   (iv)The father's birthday;

   (v)Christmas Day; and

   (vi)Father's Day.

   (c)The parents shall use their best endeavours to ensure that X is provided with privacy and no distractions during such calls.

8. That communication between parties shall be by SMS or email and the parties agree communication shall be limited to issues concerning X and not otherwise.

9. Each of the parents is permitted to travel overseas with X as agreed and failing agreement for a maximum of two weeks per annum during the term holidays and upon the following conditions:

   (a)The travelling parent shall give the other parent no less than 90 days' notice of their intention to travel; and

   (b)No later than 14 days prior to the intended travel, the travelling parent shall provide copies of a return flight confirmation, an itinerary, and accommodation and contact details where the parent and X can be reached while they are away.

10. If either parent elects to travel during the time X would otherwise be spending time with the other parent, the non-traveling parent shall have make up time as agreed and failing agreement for such periods of time during the following two short term holidays as required to make up the time.

11. The parents shall do all acts and things necessary to jointly apply for an Australian passport for the child no later than 3 months before any intended travel pursuant to order (9) above.

12. The mother shall hold the passport for the child otherwise then when the child is travelling with the father pursuant to order (9) above.

13. In the event of medical emergency involving X, including any hospitalisations, the parent with whom the child is living or spending time shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

14. Each party keep the other informed at all times of any significant medical issue or injury suffered by X, including but not limited to providing details of the issue or injury, any treatment provided and details of the treating medical practitioner as soon as possible.

15. Each parent is hereby authorised by these orders to:

    (a)Obtain at their own expense from X's schools all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited;

    (b)Discuss all matters pertaining to X's welfare with her school and treating medical and like practitioners; and

    (c)Receive information and documents at their own expense from any of X's treating medical and like practitioners.

16. Each parent is restrained by injunction from:

    (a)Insulting, belittling, rebuking, degrading or otherwise denigrating the other parent or a member of their immediate household in the presence of hearing of X and from permitting any other person to do so;

    (b)Discussing these proceedings and X's living arrangements with her or in her presence or hearing and from permitting any other person to do so; and

    (c)Showing X any documents associated with these proceedings.

17. Remove all outstanding issues from the list of cases awaiting finalisation.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

AYC 177 of 2018

MR EADENS

Applicant

And

MS MADRONA

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are final parenting proceedings in respect of the parties’ only child, X, born in 2014.

2. X’s parents are the applicant father and the respondent mother. The parties had a brief casual sexual relationship in 2013 when the father travelled to the Country F for a holiday. They had met online in about 2012.

3. The parties remained in contact after the father returned to Australia, and in about 2014, the mother informed the father that she was pregnant. The father has travelled to the Country F in several times in 2014, and March/April 2015. Each time the father went to the Country F he spent time with the child.

4. The father lives in Town A in rural Victoria, with his partner and their child. The father has been in that relationship since about 2014.

5. The mother now resides in Australia in Sydney, with her partner, their baby and X. She is presently on a temporary partner visa (sub-class 820). Both X and her baby half-sibling are Australian citizens.  The mother commenced the relationship with her current partner in or about 2015.

6. The issues in dispute between the parties are very narrow. The parties agree that X should live with the mother and that she should spend time with the father up to 3 weekends per school term on 30 days’ notice and at least half the school holidays. The parties are in dispute about:

   a)Parental responsibility;

   b)Whether X’s time with the father during school term should occur in Town A or Sydney and whether X should be permitted to fly as an unaccompanied minor now or from when she reaches 8 years of age;

   c)Whether the mother should be permitted to travel internationally with X including without surety;

   d)Where changeover is to occur; and

   e)Minor issues with respect to the precise time of Skype communication, and time on special days such as birthdays, father’s day and mother’s day.

Parental Responsibility

1. The mother seeks an order that she have sole parental responsibility for the child. The father seeks an order for the parties to have equal shared parental responsibility.

2. It is not in dispute that in the past there has been a level of conflict between the parties. It was submitted on behalf of the father that this conflict is not to a degree to which the Court could make a finding of family violence, noting that no such finding was sought by either party, and/or that it is not in X’s best interest for her parents to share parental responsibility.

3. The parties live a fair distance apart. It is agreed between them that X will live with the mother and spend regular time with the father. That time, by the very nature of the distance between the parties’ residence, will be limited. While the father submits that he is very committed to his relationship with X and that he has taken significant steps to be able to maintain a relationship with his daughter, the Court notes that the mother has also gone to significant lengths to ensure that there was a relationship between the father and X.

4. The mother does assert in her evidence that the father was coercive and controlling. The father denies this, although he did admit to sending an email on 18 June 2018 which read as follows:

   You should have been there!! Great result!
   So, I hope you realise by now that you are on the airport watchlist and so you cannot leave Australia. The judge extended this I definitely (sic).
   The police are coming to find you now.
   Tell X I shall see her soon.

1. The father explains the above email as being the product of his frustration. The Court does not accept his explanation. On its face, the email is factually inaccurate and threatening. The Court finds that it was sent with the purpose to intimidate the mother.

2. The mother deposes that the father threatened her via email or text message, saying words to the effect “Whether you stay in the Country F or Australia, I will find a way to get my daughter off you.” The mother says that after September 2017 the father sent her a number of messages threating to take X away from her. She says that those text messages made her feel extremely stressed and anxious, and affected her ability to sleep. The messages were received by the mother when her status and the status of the child were still undecided. The Court accepts that such messages would have made the mother feel vulnerable and stressed. The mother says she no longer has copies of those text messages. The Court accepts the mother’s evidence that she did receive such messages from the father. 

3. The mother submits that the father’s attitude has been calculating, that he has been intimidating towards the mother and that he has used the power imbalance between the parties to make his own decisions rather than taking the mother’s view into account. The mother gives as an example of this the refusal by the father to consent to X’s citizenship application when the mother applied, but then making his own application for X to have Australian citizenship without notifying the mother. The father denies that he obfuscated the application process in any way.

4. The Court is satisfied on balance that the presumption of equal shared parental responsibility has been rebutted. While the mother seeks an order for sole parental responsibility, she proposes to notify and inform the father prior to making any long term decisions which will affect X, as she has in the past.

School term time

1. The parties agree that X should be spending time with the father during school term and how often that time should occur.

2. One of the vexing issues for the parties is whether X should be travelling as an unaccompanied minor now or only after she turns 8 years of age. The mother, in her insightful and reasoned evidence says that she does not oppose such travel, but that at present X is simply to young and immature, and the risk to her would be too high. The mother cites her reasons as X not being able to speak up for herself at such a young age, and that she might become afraid and not be able to voice her concerns. The father does not explain why it would be appropriate for X to be able to fly as an unaccompanied minor at such a young age nor does he provide any objective evidence from the airlines as to the possibility of such travel.

3. The Court finds that it is in X’s best interest not to fly as an unaccompanied minor (provided the airlines and flight rules allow for this to occur) until she is at least 8 years old.

4. The other issue in dispute between the parties is whether the times are to be mutually agreed or whether they are to be in essence, at the father’s nomination on 30 days’ notice. The difficulty with the mother’s proposal for the times to always be agreed, is that this may not always be possible. There needs to be certainty and a way to break an impasse. The father’s proposal does this while also providing the mother with some flexibility.

Time during School Holidays

1. The parties disagree as to whether X is to spend half the short school holidays with the father or 10 nights for two of the holidays (at end of term 1 and 3) and 7 nights for the middle school holiday (at end of term 2).

2. There is no evidence in the father’s case as to why 10 days is more appropriate than 7, nor is there any evidence as to his availability during such proposed times.

3. The mother says that it is important for X to spend time with her and the family she lives with, and to also have the opportunity of spending time with her partner’s extended family. The mother says that usually at Christmas and Easter the family will travel away to go camping and that these are important family events for X to enjoy. The mother’s evidence is that X’s time during the school terms is very busy with studies and extra-curricular activities on the weekends. She does not have much free or down time to spend with the mother. The mother says that for this reason it is important for X to spend half the school holidays with her.

4. The Court accepts the mother’s evidence and finds that it is in X’s best interest to spend half of each school holiday period with each of her parents. 

Changeover

1. In general the mother does not oppose the child travelling by car to spend time with the father. In respect of changeover, the mother explains that she has difficulties in facilitating such travel as she herself does not have a driver’s licence and must rely on her partner to drive her. She also has the care of a young baby.

2. While in her evidence the mother agreed to a changeover point being half way between the parties’ residences, there is only some evidence as to the distances between the various proposed changeover points and why one place of changeover is preferred to another. The Court is aware of what Sydney traffic is like and while the distances proposed by the mother might not be half way, the changeover decided upon by the Court takes into account the mother’s restrictions in respect of driving, her reliance upon her partner for such travel and Sydney traffic (although the latter is not a weighty consideration).

International Travel

1. The father objects to the mother having X’s passport or being able to travel to the Country F with X. In the alternative, the father says that the mother should be permitted to so travel, provided she pays a bond of $30,000.

2. The mother is from Country F. Her cultural background is a matter which X will surely benefit from. The chance of being able to speak another language is to have knowledge and intellectual wealth that can only serve X well. 

3. X should be able to learn about her Country F heritage by visiting the Country F. She should have the opportunity of meeting the extended maternal family, of seeing and understanding where her mother grew up and the changes and sacrifices she has made for her children.

4. The mother has made Australia her home, she has partnered here and has two children who are both Australian citizens. The mother says in her submissions that she has no intention of living anywhere but Australia. There is no evidence that the mother is a flight risk.

5. There is no evidence that the mother has the capacity to pay a $30,000 surety in order to travel with the child. Indeed the evidence is that the mother and her partner have fairly limited financial means.

6. It is appropriate that the child’s name be removed from the Airport Watch List and that both parents be permitted to travel internationally with the child (noting that at present due to COVID-19 such travel might be some time away). This is on the proviso that there is information provided to the non-travelling parent with plenty of notice enabling the non-travelling parent to object to such travel, make that objection and the reasons for it known so that it can be considered by the parent proposing to travel, and if necessary or appropriate apply to the Court to prevent such travel from occurring.

1. The mother, as she will be the parent with parental responsibility, will hold the child’s passport.

Other matters

1. The time which X is to spend with the father on Father’s Day is to occur in line with the time she spends with her father during school term. Likewise, X is to spend the entire Mother’s Day weekend with the mother.

2. X will have the opportunity of celebrating her birthday with both of her parents. If it falls on a weekday, she will celebrate her birthday with the father on the weekend prior. If it falls on a weekend, such birthday can be celebrated with whoever she is spending the weekend with pursuant to school term time.

3. Skype communication has been occurring each Wednesday and Friday between 5.30pm-6pm. There is no evidence to suggest that this is impractical and that it should not continue. It should also occur on X’s birthday and on a number of other special days.

Conclusion

1. For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate:

Date: 15 June 2020