Eddings and Eddings (No.2)

[2009] FamCA 710

FAMILY COURT OF AUSTRALIA

EDDINGS & EDDINGS (NO. 2) [2009] FamCA 710

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Eddings

RESPONDENT: Ms Eddings

INDEPENDENT CHILDREN’S LAWYER: Jennifer McArdle

FILE NUMBER: BRC 5878 of 2008

DATE DELIVERED: 15 June 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 15 June 2009

REPRESENTATION

APPLICANT: In person

RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Selfridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS FURTHER ORDERED THAT

1. Paragraphs 2 and 4 of the final orders sought by the Mother as detailed in a document entitled “Final Orders Sought” marked as exhibit A to the proceedings on 15 June 2009, be dismissed.

   CHANGEOVERS

2. For the purpose of weekend time, changeovers shall take place as follows:-

   a)at the beginning of the weekend time, by the Mother collecting the child … born … October 1993 (“[the child]”) at the end of his sporting commitments and from the venue of his sporting commitments,  with the Father and/or the child to ensure that the Mother is advised and kept advised of the time the sporting commitment finishes and the venue of the sporting commitment; and

   b)at the end of weekend time at the … Railway Station, Brisbane with the Father to collect the child.

3. For the purpose of school holiday time, changeovers shall take place as follows:-

   a)at the beginning by the Mother collecting the child at the end of his sporting commitments and from the venue of his sporting commitments, with the Father and the child to ensure that the Mother is advised and kept advised of the time the sporting commitment finishes and the venue of the sporting commitment; and at the end the Father to be responsible for collecting the child from the … Railway Station, Brisbane; and

   b)in the event the child has no sporting commitments, at the beginning of the school holiday time and at the end of school holiday time at the … Railway Station, Brisbane, with the Mother to be responsible for collecting the child at the start of the time and the Father to be responsible for collecting the child at the end of the time.

   OVERSEAS TRAVEL

4. The name of the child … born … October 1993, be removed by the Australian Federal Police from the PACE Alert System in force at all points of arrival and departure in the Commonwealth of Australia and remove the name of the child from the PACE Alert System.

5. All previous orders in relation to the child’s passport be discharged but in particular any previous order as to the retention of the child’s passport by the Registrar of the Family Court of Australia.

6. Safekeeping of the child’s passport(s) be delivered to the custody of the Father within 7 days of the date of this Order.

7. In the event  that either party seeks to travel overseas with the child, or seeks to effect the child’s travel overseas by himself, that not less than 2 months written notice be given to the other party prior to any intended date of travel and to include the following details:-

   a.The dates of the proposed travel;

   b.The departure and arrival dates in each country;

   c.The flight number/s or other identifying details of the proposed manner of travel;

   d.A broad itinerary of travel; and

   e.A telephone number/s at which the child can be contacted during the travel.

8. In the event the Mother provides to the Father details of any proposed overseas travel for the child, that the Father will within 7 days of his receipt of the same from the Mother, provide notice to the Mother in writing of the time, date and place that the child’s passport will be provided to the Mother, within sufficient time to allow the travel to reasonably take place.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children's Lawyer be discharged.

4. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

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

MINUTES OF CONSENT

IT IS ORDERED BY WAY OF FINAL ORDER:

1. All previous parenting orders in relation to [the child] born […] October 1993 [“[the child]”] be discharged.

2. [The child] live with his Father.

3. The Mother and the Father have equal shared responsibility for the major long term issues concerning [the child].

4. That neither party make any changes to [the child’s] school enrolment without first consulting the other party, with consultation to commence by either party writing to the other setting out the reasons for any proposed change and the alternatives proposed for [the child] to complete his secondary education and giving the other party at least 21 days to respond to the proposals.

5. Subject to Order 5 hereof the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:-

   (a)they shall inform the other parent about the decision to be made;

   (b)they shall consult with each other on terms that they agree;

   (c)they shall make a genuine effort to come to a joint decision; and

   (d)attempt to resolve any dispute with the assistance of a family dispute resolution practitioner or other mediator unless the issues is urgent or life threatening.

6. Each of the parties have the daily parental responsibility for [the child] for such periods that [the child] may live with or spend time with her or him respectively.

7. [The child] spend time with his Mother at all such times as [the child] and his mother agree including but not limited to:

   (a)Each alternate weekend from such time and day as may be agreed, but with the provision that [the child] is able to attend his soccer or cricket game depending on the season or other extra curricular activity on the Saturday of that weekend.

   (b)At all other times on any weekend that [the child] and his Mother can agree.

   (c)During any part of each school holiday period as may be able to be arranged, but with the intention that at least some time in each school holiday period involves [the child] spending time with his Mother and if no other time is agreed [the child] will spend the mid weekend of each of the Easter, June/July or September/October holidays with his Mother.

   PROVIDED HOWEVER if no other agreement is reached for the purposes of these Orders, alternate weekend time will occur from after the conclusion of [the child’s] sporting commitment on a Saturday to 5 pm on Sunday and for one half of each school holiday period, alternating between the first half in odd numbered years and the second half in even numbered years.

8. Telephone communication between [the child] and his Mother shall occur as often as [the child] may wish to call his Mother and by the Mother calling [the child] on his mobile telephone each Wednesday and Sunday evening between 8.00pm and 8.30pm  AND the Father will take all steps necessary to facilitate and encourage these calls.

9. [The child] and his Mother are able to communicate with each other by email or post at all times as they may decide to do so.

10. That the parties will:

    (a)keep each other informed at all times of their residential address and landline and mobile contact telephone number, and current email address to enable communication between [the child] and each parent.

    (b)keep each other informed of the names and addresses of any treating medical or other health practitioners who treat [the child] and authorise that practitioner to give to the other parent, at their expense, information they may request from time to time about [the child], subject to any issues of privacy [the child] may raise with the medical or other health practitioner.

    (c)Inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by [the child] and hereby authorises any treating medical practitioner to release [the child’s] medical information to the other parent, at their expense, subject to any issues of privacy [the child] may raise with the medical or other health practitioner.

11. Each parent hereby authorises and requests the Principal of [the child’s] school to give to each parent at their expense copies of all school reports, notices and correspondence in relation to each of [the child’s] academic progress, sport and extra-curricular activities and general school functions and activities and other information about [the child’s] educational progress.

12. That each of the parents is restrained from the following and shall use her or his best endeavours to ensure that no other person conducts himself or herself accordingly:

    (a) Making any derogatory comment about the other parent or her or his relatives to or in the presence or hearing of [the child].

    (b) Commenting, discussing or referring to proceedings between the parents in this Court or the evidence given by either of them or any of their witnesses to or in the presence or hearing of [the child].

IT IS NOTED that [the child] is not required to make a decision in relation to any visiting periods where he expresses a firm desire not to do so.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5878 of 2008

MR EDDINGS

Applicant

And

MS EDDINGS

Respondent

REASONS FOR JUDGMENT

1. This matter has a long and sad history.  Earlier proceedings before me have resulted in orders being made and reasons being delivered in respect of earlier interim issues.

2. Those earlier reasons, delivered on 14 July 2008 set out the factual background to the application and cross-application which are made by the parents of the child.

3. The factual background and the initial proposals of each of the parties occur against the background of the child being now some 15 and a half years old, having been born in October 1993. 

4. With the considerable assistance of the Independent Children's Lawyer and her counsel, the parties have, sensibly and intelligently, entered into discussions at the commencement of what was to be a two-day hearing before me in respect of those outstanding parenting issues. 

5. The parties have, again, sensibly and intelligently, as I might respectfully say, indicated orders that they wish to have made by consent which the Independent Children's Lawyer also supports.  Those proposed orders are contained in Minutes of Proposed Order signed by each of the parties and which will be perfected by the Independent Children's Lawyer forwarding a perfected Minute of Order to my chambers by email at the same time as contemporaneously providing same to each of the parties.

6. Consequent upon those discussions and the agreement reached, there are four outstanding issues between the parties.  They have been set out in a document entitled, "Final Orders Sought," and are each orders sought by the mother. 

7. The first two of those proposed orders relate to the time that the mother shall spend with the child in accordance with the Minutes of Consent otherwise agreed to.  Specifically, the mother seeks an order that changeovers for time between the child and her are to occur at the Brisbane Railway Station.  The mother currently lives in the Sunshine Coast area, the father lives in the Gold Coast area, and the mother says that the Brisbane Station is an approximate halfway point between their respective residences.

8. Secondly, and in effect consequent upon that order, the mother seeks an order that, when she is required to effect changeover at the Brisbane Railway Station, the father shall reimburse her travel costs in the sum of $50.  Additionally, and related to that, she seeks an order that, when she is required to effect changeover at the Gold Coast, the father shall reimburse her travel costs in the sum of $80, with the moneys in each case to be deposited to a bank account nominated by the mother and not more than 30 days in arrears.

9. The third and fourth orders sought relate to what might be seen as discrete issues. 

10. In paragraph 3 of that document the mother seeks an order that:

    "The child's passport (until he reaches the age of 18) shall be held in the Registry of the Family Court and only released to the child or either parent on presentation to the Registrar of a request to release signed by both parents.  At the completion of any overseas travel the child's passport is to be returned to the Registrar".

11. That order is sought against a background which is somewhat unclear.  The father contends that an order was made in April 2005, he thinks in this Court, that the passport or passports of the child be held by a Registrar of the Court pending further determination. 

12. This matter, at least insofar as the documents on Court files indicate, started life in the Federal Magistrates' Service. That Court made a decree nisi of dissolution of marriage on 18 September 2001 consequent upon an application being made for same earlier that year.  That same file indicates that the next matter the subject of proceedings occurred when a Form 1 was filed on 25 May 2006. 

13. Ultimately, consequent upon other material having been filed in that year, orders were made by Walters FM on 14 November 2006.  Those orders provided that certain paragraphs of the wife's response, filed on 11 November 2006, be struck out. 

14. However, another document on the file indicates that each of the parties intended to travel overseas to New Zealand in, respectively, early December 2006 and early January 2007.  It seems that both parties accept that either orders were made at that time to that effect, or, absent orders, there was agreement to the effect that that travel could take place. 

15. Paragraph 5 of that document described as "Attachment to Orders Sought," provides:

    "That the child's passport be released by the Registrar of the Family Court to the applicant father … and the respondent mother … for the proposed periods of travel 6 December 2006 to 28 January 2007".

16. It will be plain, then, that at about the time that these proceedings took place in the Federal Magistrates' Court, that Court, or at least the parties, thought that the child's passport was in fact held by the Registrar of the Family Court. 

17. Obviously enough, that lends credence to what the father contends is the case, namely that an order of this Court was made in early 2005 to that effect.  However, the Court file in this Court reveals no proceedings at that time.  That does not mean that they did not occur.  These current proceedings have proceeded now for a long time, with many documents having been filed.  Perhaps the earlier file, with, perhaps, a different file number, has not been retrieved, although I must say that it is unusual that a matter is given a new file number in the circumstances just described.

18. Be that as it may, in light of the previous history of concerns about this issue and the application made by the mother, I asked each of the parties why an order ought not be made to the effect that any previous orders with respect to the retention of passports by the Court be dismissed with a view to this Court making orders that, in the event that either party seeks to travel overseas with the child or give effect to the child travelling overseas himself, they should provide not less than two months' notice in writing of any such travel, giving at that time particulars of the date of arrival and departure in each country, the length of stay, flight arrangements and a contact telephone number while the child is overseas. 

19. Further, in light of the mother's contention that the father would be recalcitrant in providing the passport or passports necessary for the child to effect such travel, I inquired of both parties whether there was any impediment as far as they were concerned, to my ordering that, in the event that the mother seeks to travel and complies with the order previously made, that the father shall specify in writing in response to the written request to the mother, where and when the child’s passport would be delivered to her.  

20. The mother says that I should not make such an order in those terms because, as it were, the Court cannot trust the father to comply with it.  I disagree. 

21. It seems to me that the orders just outlined provide an appropriate balance between ensuring that the child is not taken to an overseas destination without prior knowledge or warning by either party, but at the same time providing the maximum flexibility to each of the parties in respect of that travel.

22. Accordingly, I will make orders in the terms just indicated, together with an order that the passports be delivered into the custody of the father within seven days of the date of this order.

23. The second, separate issue in respect of the final orders sought by the mother is in these terms:

    "The father is to retain any personal effects of the mother's which were, until the mother was detained at the [N] Hospital in May-June 2008, in her possession in her home in [Y].  These items include, but not exhaustively "-

    there is then listed a number of items, as follows:

    "Sony laptop computer; computer; bedding; photographs; video camera (Sony); video tapes; school reports; certificates; sporting/music/school awards; books; CDs; videos, DVDs and DVD player; computer games; kitchenware; clothing; tools; files; music instruments; legal papers".

24. In respect of that application, it transpired in discussions with the parties, each of whom represent themselves, that there was a significant matter of dispute between them about whether in fact those items came into the possession of the father, and if so, in what circumstances. 

25. That being the case, I required the husband to enter the witness box and permitted the wife to cross-examine him, restricted to the topic the subject of the orders sought in respect of return of chattels.  That cross-examination took place and had as its starting point a paragraph of an affidavit sworn by the father earlier in these proceedings in which it was said that the child had informed the father of certain things. 

26. The husband gave evidence that, at about the time when the mother was admitted as an involuntary psychiatric patient at the N Hospital.  Highly conflictual accounts of the events surrounding that admission exist.  They include what the mother alleges now, and has alleged for some considerable period of time, is improper conspiratorial behaviour by two people who were sharing her house at the time, Mr and Mrs R. 

27. The father swore in the witness box that he had travelled to Western Australia on the morning of 26 May 2008.  He was unsure when he returned, but it was about three days later.  He says that he received a text message from the child as he was getting onto the plane.  The text message from the child requested that he (the child) be picked up as soon as possible.  The husband arranged for people to pick the child up. 

28. The wife asked the husband a number of questions about the items that the child had in his possession at the time when the father first saw him upon his return from Western Australia.  The father said that the child had what he described as "his computer," electronic games and puzzles.  He said on a number of occasions that the computer and the computer games were "particularly important to [the child]."  The wife continued in her cross-examination asking a number of questions about a number of specific items.  The father said in evidence that the child "may have had a pillow," but he denied that the child had the sort of extensive bedding that the wife alleged.  

1. Save for the allegations by the mother …………… on their foundation an assertion that, when the wife returned from the hospital to her home, there were items missing, many of which were large.  For example, the child’s bedding was, she says, missing from her home. 

2. In effect, the wife alleges that the father took those items, or alternatively, that there was some sort of conspiratorial behaviour between he and the Rs so as to effect other people (probably the Rs) taking those items.  Either way, the mother suggests that the father is, as it were, behind the items being removed from her property. 

3. Insofar as the specific items sought in paragraph 4 of the final orders sought, it seems plain that electronic games, electronic puzzles, (what the wife refers to as "computer" - as distinct from "Sony laptop computer"), came into the child’s possession and subsequently the father's.  He said he was unsure about books being in the child’s possession.  He was also unsure about whether sporting equipment was in the child’s possession at that time. 

4. The husband said that he recalls the child being "concerned about his things that were still at the house" when he presented to the father with the items to which I have just referred.

5. In summary, then, the father swears to the child having with him the computer on the list provided by the mother, that he may have had some sporting awards and the like, that he certainly did have some computer games, that he may have had some "CDs" or "DVDs" but certainly did not have a DVD player. 

6. The father denied generally the child having possession of, or the father subsequently coming into possession of, what might be described as large household items that are on the list such as "bedding", "kitchenware", "tools" and the like.  Similarly, the father denies that the child had possession of, or he subsequently had possession of, any files or documents or photographs that were in the mother's home prior to her admission to the N Hospital.

7. Insofar as there are listed items which are denied by the father as having been either in the child’s possession, or subsequently in his possession, I accept the evidence of the father.  I have no reason to doubt it.  It seems to me to be likely and believable. 

8. Insofar as there is admission by him of items that are on the mother's list in paragraph 4 which came into the child’s possession, and therefore the father's possession at or about the time that he saw the child, they can be identified as being a computer and computer games, various books, tapes, CDs and the like, as well as an additional matter which I will refer to in a moment.  Each and all of those items can, it seems to me, be regarded as items which are highly important to the child. 

9. I reiterate that this child is a child who is now 15 and a half.  At the time that these events occurred he was 14 and a half.  It is hardly surprising, in the Australia of today, that the child would indicate to his father that his computer and computer games were particularly important to him. 

10. In response to that, the mother says that the computer was "owned by he and I."  She says it was the computer that was used for her work and contained work associated with her teaching and the like. 

11. I see no reason why this issue, like other issues in respect of the orders to be made by me, should be determined other than by reference to what is in the child’s best interests. 

12. In that context I have no difficulty whatsoever in finding that the computer and the games and programs associated with it should remain in the child’s care, because I accept that they are particularly important to him.  Both parties agree that the events of 12 months ago were significantly disturbing for him, and anything, it seems to me, which was, and is, likely to provide him with security and comfort is highly likely to be in his best interests. 

13. The additional matter to which I made reference earlier is a dog. 

14. It is staggering to me that a dog could be the subject of proceedings which have as their core the best interests of a 15½ year-old child.  Nevertheless, it was raised by the mother, it seems, as a matter of some importance. 

15. It seems that the dog came into the possession of the child and is in his possession now whilst living with his father.  The dog was, apparently, something which the mother and the child shared, and according to the mother, wish to continue to share.  The desire to share the dog and to share moments with the dog with the child might, of course, be seen as understandable. 

16. I have very little doubt, however, even on the mother's evidence, that the dog occupies a particularly important place in the child’s life.  I have no hesitation in saying that it is in his best interests that the dog should remain with him.

17. The criterion of best interests should also, in my view, determine the orders I make with respect to changeover and reimbursement of costs. 

18. In the latter respect, the mother says that she has no money.  She was on Centrelink benefit but is now on Newstart Allowance.  She says she currently pays no child support.  She has paid no child support during the whole of the time that the child has been in his father's care, (now about 12 months or so). 

19. The mother says that the arrangements for seeing the child involve her in travel and expenses associated with travel.  Clearly enough, that is true.  She says further, however, that the child relocated to the Gold Coast, without her “permission” at a time when she was in the N Hospital.  She says that, as a result, it is appropriate for her to be "compensated" in respect of that by way of the payments that she says should be made in respect of the child. 

20. The wife also says that she was hoping to travel overseas in June or July this year.  She says she is able to afford to do so because an aunt in Greece is prepared to meet all travel and living expenses and the like for that trip.

21. I have little doubt that there is expense associated on spending time with the child.  Equally, however, there is very significant expense in meeting the day-to-day needs of a 15½ year-old boy in circumstances where no child support whatsoever has been paid in the 12 months that he has been in the father's care, or currently. 

22. It seems to me that the circumstances in this case do not justify the payment of the moneys sought in paragraph 2 of the final orders sought by the mother. 

23. The issue of changeover, which bears somewhat upon the issue just described, is essentially a "competition" between changeover occurring on the Gold Coast after the child’s sporting arrangements conclude, (that arrangement being the subject of the agreement between the parties earlier referred to) and Brisbane Railway Station, which is said to be approximately halfway between their respective residences. 

24. It seems clear from what the mother has said that that order was sought by her because it was "fairer" in the circumstances earlier referred to. 

25. In answer to my specific questions, the mother indicated that the child’s sporting commitments, (which, it seems to be common ground between the parties are a very important part of his teenage life), involve him going to different locations on the Gold Coast.  She says that these change "all the time" and therefore that makes it somewhat more difficult for her. 

26. I by no means understand why the latter should be the case.  I suggested to the mother during the course of discussion about this issue that, although it was clearly true to say that the child’s sporting interests and commitments impinge on, as it were, one to one time between he and her, that, nevertheless, time between she and the child might also consist of her being able to observe the child playing cricket or, I gather, in the winter, AFL.

27. The position of the Independent Children's Lawyer in respect of this issue, which is the only issue upon which the Independent Children's Lawyer sought to make submissions, was to support the proposal that changeover occur at the sporting venues where the child’s sporting commitments took place, which are essentially on the Gold Coast.  It was submitted that they maximised the amount of time that the child spends with his mother. 

28. It seems to me that such a changeover arrangement does, indeed, do so.  It also seems to me that, when one is dealing with a 15½ year-old boy, the potential for the mother to share in sporting commitments which are clearly very important to him is an important part of the time which she spends with the child and not, as she would have it, distinct from it. 

29. Furthermore, I am unconvinced that the asserted changes in venues and the like on the Gold Coast impinges significantly on her capacity to spend time with the child in the manner otherwise agreed to. 

30. I agree with the submission of the Independent Children's Lawyer that an arrangement that potentially has the components earlier referred to as part of it is to be preferred to an arrangement that would otherwise involve both parents in undertaking a driving activity for the sake of meeting halfway between the two residences.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date:  5 August 2009