Finch and Shibo (No. 2)

[2014] FamCA 1039

FAMILY COURT OF AUSTRALIA

FINCH & SHIBO (NO. 2) [2014] FamCA 1039

FAMILY LAW – CHILDREN – Interim Orders – Where parenting Orders were made by consent – where the father has been restrained from commencing further proceedings without leave from the Court – where the father was granted leave to file an initiating application to vary the existing Orders – where it is in the best interests of the child to vary the Orders.

Family Law Act 1975 (Cth)

APPLICANT: Mr Finch

RESPONDENT: Ms Shibo

FILE NUMBER: BRC 2788 of 2009

DATE DELIVERED: 28 October 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 28 October 2014

REPRESENTATION

FOR THE APPLICANT: The Applicant in person

FOR THE RESPONDENT: The Respondent in person

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That paragraphs 6, 7, 11, 12 and 13 of the parenting Order made 22 November 2011 are discharged.

2. That commencing this Friday 31 October 2014, the child shall spend each alternate weekend with the father, with the father to collect the child, if the Friday is a school day, from the Suburb M State School (or such local High School as she might be attending) at the conclusion of school on the Friday and to deliver the child back to the school for the commencement of school on the following Monday morning if that day is a school day.

3. That if the Friday upon which the father is to collect the child is not a school day, then he shall collect her at D Contact Centre at 4:00 pm on that day.

4. That if the Monday following each weekend that the child spends with the father is not a school day then the father shall return her to the mother at 5:00 pm on the Sunday of that weekend at D Contact Centre.

5. Any costs charged by D Contact Centre to facilitate any changeovers pursuant to this Order are to be borne equally by the parents.

6. That in the event that the father is for any reason not going to be able to have the child in his care on any particular weekend, he shall notify the child’s school by telephone (as well as notifying the mother) as soon as he knows that he will not be picking her up on the Friday afternoon.

7. That in the event that the father is for any reason going to be late in picking the child up on any particular weekend, he shall notify the child’s school by telephone as soon as he knows he is going to be late (as well as notifying the mother) so that the child can be put in Out of School Hours Care from where she shall be collected, with the father being liable for any costs incurred by the child’s use of Out of School Hours Care on such day.

8. That paragraph 18 of the parenting Order made 22 November 2011 is varied so that the mobile phone provided by the father for the child’s telephone contact with him is to be switched on and charged each Wednesday and each Sunday when the child is not in the father’s care on that weekend between 5:00 pm and 6:30 pm Queensland local time.

9. That paragraph 19 of the parenting Order made 22 November 2011 is varied so that the father may communicate with the child, by means of 1 phone call each Wednesday between 5:00 pm and 6:30 pm Queensland local time and 1 phone call each Sunday when the child is not in the father’s care on that weekend between 5:00 pm and 6:30 pm Queensland local time, via the mobile telephone that he has provided for the child’s communication with him.

10. That the mother shall not let any third person use the mobile telephone that the father has provided for the child’s communication with him for any reason.

11. That the mother shall use her best endeavours to ensure that the child’s telephone call with the father is taken by her in a private, quiet location and should the child miss taking the call from the father on either the Wednesday or Sunday night for any reason, the mother shall ensure that the child calls the father back and speaks to him as soon as practicable thereafter.

12. That the child’s passport shall be released to the mother by the Registrar of this Court’s Brisbane Registry forthwith and she shall retain it in her safekeeping, only to be used for the child’s travel, including any travel the child does with the father, otherwise in accordance with the provisions of paragraphs 34, 35, 39 and 40 of the parenting Order made 22 November 2011.

IT IS FURTHER ORDERED BY CONSENT

1. That paragraphs 37 and 38 of the parenting Order made 22 November 2011 be discharged.

AND IT FURTHER ORDERED

1. That the matter be listed for mention at the first available date before a Registrar for further management towards final hearing, such proceedings being limited to those issues raised in the father’s Initiating Application filed 3 June 2014 and the mother’s Response filed 24 October 2014.

2. All previous orders in respect of the father’s ability to make applications in respect of parenting orders remain in force.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Shibo (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2788 of 2009

Mr Finch

Applicant

And

Ms Shibo

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. On 22 November 2011, competing parenting orders proceedings between Mr Finch (“the father”) and Ms Shibo (“the mother”), in this particular case, in respect of their little girl, K (“the child”) born in 2007, were set for a final trial in this Court before me.  The parties both then represented by counsel and an Independent Children’s Lawyer, who was also represented by counsel, reached, after some effort and time as best as I can recall, an agreement in respect of the competing parenting orders proceedings that they were involved in at the time.

2. That agreement was converted into a draft of minutes of order that the parties asked me to make as a final parenting order in their matter with their consent.  Those orders were made by me with the consent of the parties after I considered that they were, indeed, orders that were made bearing in mind the best interests of the child being the paramount concern.

3. Those Orders were of some almost six A4 pages in duration and dealt, quite extensively, with living arrangements, parental responsibility, schooling arrangements, the time that the child was to spend with the father, place of changeover, matters in respect of communication, specific issues and, indeed, questions of travel and injunctions.

4. Sometime thereafter an Order was made restraining the father from commencing any further proceedings in respect of parenting orders for this child without first obtaining the leave of the Court.  I made that Order, satisfied that that was necessary in the best interests of the child in this particular case.  Thereafter, over a period of time, the applicant father made repeated application to the Court pursuant to that Order seeking permission or leave of the Court to commence proceedings against the mother for variation of the existing Orders.  Those applications were heard ex parte as they were required and as was the intent of the order that was made in the first place with a view to not exposing the mother unnecessarily to the burden of having to receive and respond to repeated applications by the father without the Court first having the opportunity to vet those applications and determine what he ought to be allowed to proceed with, thus bringing the mother into the proceedings.

5. Ultimately, and after indeed some considerable amount of work as between the father, the Registrars of the Court and myself, leave was granted for him to file the Initiating Application that he did on 3 June 2014.  In that, he specifically sought orders dealing with three particular areas of concern, as I understand it. 

6. One being particularly in respect of places for handover of the child and around that an issue that arose out of the wording of the previous Order that did not provide for handovers outside the school when the time with the father was provided for on non-school weekends, such as in school holidays.  The second area of concern arose out of the father’s telephone communication and the third arose in respect of the right for the mother to take the child to Cambodia, her country of origin.

7. Ultimately, after a bit of a false start on the first occasion that the matter was listed for a hearing, it was set down for hearing today, Tuesday 28 October, for the determination of at least those interim orders or those issues that the father sought to be dealt with on an interim basis, which coincidentally, happened to be all of the orders that he seeks to or sought to have dealt with on a final basis as well.

8. The mother finally, apparently with the assistance of a solicitor, was able to draw up a relatively detailed affidavit in response and swear it and file it on 24 October 2014, in addition to a document being a Response to Initiating Application in which she also sought a couple of changes or several changes to the original Orders that were made in November 2011.

9. Rather unfortunately, the mother has been unable to obtain legal representation in the same way as, unfortunately, the father has been unable to retain legal representation and both of them have appeared today before me unrepresented.  I note for the record that the mother who is a Cambodian or Khmer, I think as they call the people by origin, has an interpreter qualified in the interpretation of her language with her today interpreting the proceedings to her.

10. The best interests of the child, I am satisfied, as is obvious from the fact that I have already made some orders varying the previous Orders, are indeed met by some variation to the pre-existing Orders and, in my view, are met by variation to the pre-existing Orders in the way that I have done them today.

11. Firstly I say, the mother seeks in her response an order that changes the previous Order insofar as parental responsibility is concerned.  The previous Order contained a parental responsibility clause that the parties agreed to, I again observe proceedings in which there was an independent children’s lawyer, that the mother and father have equal shared parental responsibility for the major long-term care, welfare and development of the child. 

12. The mother, in her response, has sought an order that she have sole parental responsibility for the major long-term issues in respect of the child.

13. As I indicated to her, on an interim basis, I do not consider it appropriate to vary the terms of the parental responsibility conferred in respect of this case from those that the parties and an independent children’s lawyer determined were orders that should be put in place, at least at this interim stage.  That is not to say that it would not be a matter that the Court might ultimately, after further consideration of the evidence, determine should not be changed but, at this point in time, I do not consider it in the best interests of the child at an interim hearing without further exploration of the evidence and consideration given thereto to vary the terms of an order that the parties only just three years ago agreed to in respect of parental responsibility.

14. Whether the mother wants to proceed with that application to a final hearing will, of course, ultimately be a matter for her having regard to the advice that she takes in respect thereto between now and then.

15. The previous Orders provided for the father to collect the child from the Suburb M State School at the commencement of the time that she was to spend with him, namely each alternate weekend.  They provided for the mother to collect the child from C Contact Centre which is a publically run community-based contact centre in the Moreton Bay Suburb B area, as I understand it, on the Sunday afternoon at the end of that alternate weekend of time that the child was to spend with her father.

16. That was to be done at her sole cost.  She has, as I understand it, been bearing the sole expense involved in using that contact centre for such handovers ever since those orders were made.  That also obliged her, of course, to drive down from the Sunshine Coast where she lives to Moreton Bay Suburb B at the end of each alternate weekend on the Sunday afternoon to collect the child and return with her to Suburb M where she lives on the Sunshine Coast.  In that way, the parties, one might say, equitably shared the travel arrangements in respect of the child.

17. It seems clear to me, and the mother certainly makes it clear in her evidence and in her submissions, that the orders that were put in place provided for the child to transition between the mother and the father each alternate weekend for the time that she is to spend with the father in a way that prevented the mother and the father coming into immediate personal physical contact with each other.

18. I am satisfied that such prevention is indeed in the little girl, the child K’s best interests.  Without even considering all of the evidence that has been before the Court over the years about the nature of the risk of what might occur when the father and the mother come into personal contact with each other, I mean by that, without even turning my mind to the question of whether allegations of domestic violence that are made by the mother and denied by the father, are indeed supported,  I am quite satisfied, from my own observation in dealing with the applicant father in the almost four years that I have now sat on this Court during which I have dealt with this particular matter, that it is definitely not in the child’s best interests for the father and the mother to come into immediate physical contact in a public location, like a service station on the Bruce Highway, at the time she is to transition from his care into her care.

19. Evidence has been put before me today in the form of letters received by the parties from the coordinating community that runs C Contact Centre (which, coincidentally, has had its name changed to … Contact Centre) and I am satisfied that the father, for his own health reasons, and I particularly say with respect, mental health reasons, again supported by a letter that he handed up from a psychiatrist who he has been seeing who only just wrote this letter on his behalf in the last couple of days, would simply not be able to constrain himself or hold himself back in the way that he might at least verbally if not physically.  I do not suggest that I consider that he might physically assault the mother, but I am quite satisfied that he would not be able to restrain himself and hold himself back in the way he verbally dealt with the mother, or any person that accompanied her or any agent that she sent on her behalf, at a time when the child was transitioning into his care.  I am quite satisfied that it is just not in her interests, that is the little girl’s interests, to expose her to an unacceptable risk of emotional trauma or harm that is likely to occur if she was to regularly and consistently see and experience the way in which I have very little doubt the father would talk to and deal with her mother at such transitions from time to time, particularly when he felt aggrieved and felt that things weren’t going exactly in the way he wanted them to go or expected them to go.

20. In such circumstances, I am quite clear that it is not in the child’s best interests to vary the Orders so that the mother has to drive her half way down the Bruce Highway and meet with the father at a garage in the car park, hand her over and then do exactly the same thing in reverse at the end of the weekend of contact.

21. So adamant and convinced about the merit of her position on that was the mother, that, indeed, she has been prepared to offer the father an extra night each alternate weekend with the little girl, the child K, just so that she does not have to come into face-to-face personal contact with the father.  That to me is testament to the strength of her conviction in respect of not wanting physical and personal contact with the father, particularly in the child’s presence. 

22. Now, the reason that position had to be considered and ultimately that further concession made by the mother is because evidence came before the Court today that C Contact Centre who had been until now, facilitating handovers on a Sunday afternoon, thus allowing a situation to be in place where, yes, transport of the child was effectively equitably shared between the parties.

23. C Contact Centre has in the last few days notified the parties of a decision taken by its management that it will no longer facilitate the use of the centre by the father and the mother.  Of particular relevance, though, is the evidence in the form of the two letters that were sent by the centre to each of the parties, one letter sent to each of the parties.

24. Firstly, the letter that went to the mother advising her that facilitation was no longer going to be provided by the centre, informed her that it was no responsibility or fault of hers that led to the situation.  In contrast, and I must say, not unsurprisingly, in respect of my dealings with the father over the last four years the letter that was sent by C Contact Centre to the father fairly and squarely attributed responsibility for their decision not to facilitate the use of the centre anymore by this particular family at the feet of the father and his, what was described, I think, as abusive communication and behaviour with the management and staff of the centre.

25. So the situation, I accept, of the parties no longer being able to use C Contact Centre is one that, on the evidence that I have, is the sole responsibility of Mr Finch himself.  One that he cannot, in any way, attribute to being a responsibility of the mother.

26. So that leaves the Court in the position of having to determine where handovers of the child or transition of the child between the care of the parents is now going to take place at the end of the alternate weekends that she spends with her father.

27. The thought turned momentarily to the other children’s contact centre that the Court knows is at Town E which might also then facilitate equitable sharing of transport between these parties to some extent.  But then I remembered that in the previous proceedings, I think it was also C Contact Centre, but the Town E Contact Centre had also determined to refuse to facilitate this family’s use of the centre because of its experiences with the father in a similar vein.

28. So there being, really, no other choice in this case, on an interim basis I determined to accept the submission of the mother that the child could stay overnight on the Sunday night as well and for the father to return her to her school before the commencement of school on the Monday morning on those alternate weekends when she has school on the Monday following that weekend.

29. In the course of discussing the matter with the parties, of course, the father, as he has done before, said to the Court that if the Court did not accede to his application and determine something contrary that required him to still drive all the way to Suburb M on the Sunshine Coast that he would not exercise time with his child and would leave the situation where she just did not get to spend any time with him. 

30. He, I note in these Reasons, effectively urged the Court not to therefore provide any order that allowed for him to collect the child and return the child alternate weekends for her to spend time with him.  I thought about that and gave some consideration to it, but satisfied that what the father says to this Court does not always accord with what he actually means or intends or really wants to do or will do.  I nevertheless determined it to be in the child’s best interests to make orders that still provide for her to spend time with him on an alternate weekend basis in circumstances where he goes and collects her and then returns her to her school on the Monday morning following that weekend.

1. The Orders provide that these alternate weekends simply continue through the holidays without interruption to the sequence.  Through each school holiday period they provide in circumstances when the Friday of the start of the weekend is not a school day, or the Monday at the end of that weekend is not a school day for the father to pick up the child from D Contact Centre on any such days and to drop her back to that same centre but on the Sunday at the end of the weekend, rather than the Monday morning.

2. I provided in my Orders for any costs charged by D Contact Centre for such handovers to be borne equally by the parties.  I consider that appropriate in the circumstances, particularly in circumstances where the mother receives no effective child support from the father, at least through the Child Support Agency.  Although he maintains to the Court that in the past he has provided cash to a bank account of the mother’s and, indeed, on an ongoing basis buys clothing for the child and lets her return to her mother with that clothing in place.  Matters that the mother, although I did not really ask her about, has not denied or said anything about.  Although, as I acknowledge, I did not really pursue that matter with her.

3. I am also asked in respect of telephone communication to consider changing some of the orders that provided for that in the previous set of Orders.  Most particularly, and importantly as I see it, the father applied to the Court for an extension, what could really be described as a small extension of the window of time within which he can call the child, and perhaps a little bit more opportunity to speak with her other than just once a week that was provided for in the previous Orders.

4. After some discussion with the mother at the bar table, although I acknowledge quite quickly, she did not seem totally enamoured or comfortable with any change to those Orders that might, in her words, increase the window of opportunity for the father to make life hard for her.  I am nevertheless satisfied that opening the window of time within which the father can call the child is, indeed, something that I will do and my Orders have provided for that.

5. After some discussion with the mother, the father’s reasoning was that sometimes he is away, he might be overseas working, as he says he sometimes does, and the time differences might create problems.  The nature of the work well might be such, for example, there’s an emergency situation that needs to be controlled, that he can’t immediately get to the phone within that window of 6.00 pm to 6.30 pm that was already in the Orders, and he has asked for some expansion of that. 

6. I determined, and having regard to the submissions that the mother made about the child’s bedtime and the need to get her ready for bed etcetera, that opening that window of time to 5.00 pm to 6.30 pm, rather just 6.00 pm to 6.30 pm on a Wednesday is something that is in the child’s interests and meets that need of the father.  But I also was satisfied that the child also should have the opportunity to speak with the father on a Sunday evening on the weekend when she is not spending time in his care pursuant to the Orders and I’ve allowed by my Orders for him to be able to call her between 5.00 pm and 6.30 pm on Queensland local time on such Sunday nights as well, thus increasing her telephone communication with him by 50 percent, one extra call each fortnight.  So rather than there being two, he can now speak with her three times.

7. Additionally, the father had some fairly significant complaints that he was leaving against the mother in that asserting that she was letting others, namely her sister, use the telephone that he was to provide under the previous Orders for the child’s sole and particular use of communicating with him.  The mother conceded that this had happened on an occasion, although she limited it to one occasion that was some sort of emergency, saying that she was not doing it anymore and accepted, when I had a discussion with her between bench and bar, that given that she had no intention of allowing any third person, such as her sister, to use that mobile phone for other purposes in future that an order restraining her from doing that is not an inappropriate thing and that is why I made such an order.

8. I also made orders that the father must be responsible for letting the school know, as well as the mother, if he is not going to be picking up the child at the end of the school day on the Friday when she is to come with him, or, indeed, if he is going to be late.  Because if he is late it creates an issue with respect to the school’s responsibility for caring for the child between the period of time that school formally ends and when she is picked up by the father, and as I understand the evidence, it seems that she gets transferred quite responsibly by the school to the after school hours care facility. 

9. The mother though, effectively complains that this then raises a financial impost on her in that the costs of that after school hours care gets levied against her, and quite reasonably, she submitted that that should, if it is incurred as a consequence of the father being late to pick her up after school, it is a cost or an impost that the father should bear on those days it happens and accordingly I made such an order considering that to be reasonable in the circumstances.

10. Also, this is again on the complaint of the father that often when he rings they are in a noisy shopping centre or something like that or the child is not around, I made an order that imposes an obligation on the mother to at least use her best endeavours, that is, to try as best she can to ensure that the child’s telephone call with the father is taken by the child in a private and quiet location.

11. If the child misses out on a call from her father, so if the father calls and she has missed a call, that is, during 5.00 pm and 6.30 pm on those nights and she has missed a call, then it imposes an obligation on the mother to ensure that the child calls the father back and speaks to him as soon as practicable after she has missed that call. 

12. Finally, there was the issue about Cambodia.  The father came to this Court, having consented only three years ago to Orders that, quite clearly, allowed the mother to take the child to Cambodia with her and to take the child to Cambodia with her at least once a year for up to four weeks at a time, asking this Court now to restrain the mother from taking the child to Cambodia. 

13. He makes submissions that there were a whole host of grounds, some of which he referred to, that justify restraint now being imposed upon the mother;  namely, that there are health risks caused by mosquito-borne diseases such as malaria and dengue fever.  With respect, those would have always existed, as far as I am aware, in respect of South-East Asian countries such as Cambodia.  He made submissions that the child, because she is a Eurasian child and noticeably so, he said, but in somewhat other less effective terms, is at risk of being kidnapped and held for ransom.  Again, with respect, I do not see any evidence that suggests that that is a risk that has emerged since the last time he consented to the Orders three years ago. 

14. He had made the submission that the mother might very well decide to stay in Cambodia.  That is a submission that has not persuaded me at all.  The mother has, as I understand it, travelled with the child to Cambodia on a number of occasions and has done since the last orders were made, orders that the father consented to, and she has returned.  She has informed the Court this morning, and I must say, I accept her assertion, that she likes living in this country and she wants her little girl to grow up in this country.  I do not doubt that at all.  In fact, I am quite satisfied that those are genuine beliefs held by the mother in this particular case. 

15. That does not mean that as a Cambodian woman with a family of origin still living in Cambodia that she doesn’t want to visit Cambodia and take her child there and show her to her grandparents and other members of her extended family, to introduce her to the Cambodian culture.  The father proudly said to me that the child speaks the Khmer tongue that her mother speaks, and that does not surprise me at all, given the number of Australian people that have grown up with parents whose first language is not English, who can, very luckily and fortunately, speak a second language, sometimes a third language if both of their parents speak different languages other than English as their first tongue. 

16. The mother, quite properly and reasonably, asserts a desire to take her child and let her experience her family and her culture and her other language back in that country of the mother’s origin.  The father even said he does not want to stop the child experiencing her culture.  At this interim stage, with respect to him, the evidence and his submissions have not persuaded me that the mother should be restrained from taking the child to Cambodia in the future.  I understand she went there and the father accepts she went there last year and took the child with her. 

17. He attempted to make some sort of case in submissions that she is not properly cared for when she is there.  Really, the evidence does not persuade me of that either.  Indeed, I was also told that the parties had, by agreement, reached a position where the Airport Watch Order that had previously been in place was lifted and the child is no longer on the Airport Watch List.  For some reason, the previous Orders provided for a particular trip for the mother to take to Cambodia just after those Orders were made, and provided that the passport of the child was held by the court registrar at the time.  They provided for the registrar to release the passport to the mother on that occasion but for the mother to return the passport to the court registrar then. 

18. Then however, the Orders went onto provide that each of the parents could travel with the child overseas with particular conditions attached to such travel.  I am left at a loss in the light of that to understand exactly why it is that the registrar of the Court or why the passport has to be retained in the Court’s registry.  I have determined, as asked by the mother, that it is quite appropriate for it to be released back into the mother’s care.  I have specifically stated, to be used only in accordance with the balance of the orders that were in that Order, namely, the provisions about written notice to the father, full details of itinerary etcetera, and those other things that are included in paragraphs 34, 35, 39 and 40 of the parenting Order made 22 November 2011. 

19. I also finally ordered, noting that it was with the consent of the parties as they indicated to me during the hearing, that those orders, 37 and 38, in respect of the Airport Watch List, are no longer necessary, having already been, effectively, discharged by the parties, and so I discharge those by consent of the parties. 

20. Those are my Reasons.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 28 October 2014

Associate: 

Date:  12 November 2014