Fletcher and Prince - [2011] FMCAfam 143

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FLETCHER & PRINCE

[2011] FMCAfam 143

FAMILY LAW – CHILDREN – Parenting orders – one child aged 9 years living with mother – father mainly lives in the United States of America – best interests of the child – arrangements for when the father is living in the United States – arrangements for when the father is living in Australia.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65Y

In the Marriage of Hall (1979) 5 Fam LR 609

Applicant:

MR FLETCHER

Respondent:

MS PRINCE

File Number:

SYC 5495 of 2009

Judgment of:

Scarlett FM

Hearing dates:

6 & 7 October 2010

Date of Last Submission:

7 October 2010

Delivered at:

Sydney

Delivered on:

2 March 2011

REPRESENTATION

Counsel for the Applicant:

Mr Givney

Counsel for the Respondent:

Mr Maurice

Solicitors for the Respondent:

John De Mestre & Co

ORDERS

All earlier parenting orders are discharged.
The respondent mother is to have sole parental responsibility in respect of long term issues concerning the care, welfare and development of the child [X] born in 2001.
The applicant father is to have responsibility for day to day issues relating to the child [X] whilst the child is in his care.
The child [X] is to live with the respondent mother.
Whilst the father is residing in the United States of America, the child is to spend time with him as follows:
(a)For the whole of the Term 2 school holiday period in 2012 and each even numbered year thereafter;
(b)For the whole of the Term 3 school holiday period in each year; and
(c)For half of the Christmas/January school holiday period in each year being the first half starting in 2011 and all odd numbered years thereafter and the second half starting in 2012 and all even numbered years thereafter unless the parties otherwise agree in writing.
The father is permitted to take the child [X] born in 2001 out of Australia for the purposes of spending time with him in the United States of America during the times specified in Order (5).
For the purposes of the child’s travel to and from the United States of America the father must:
(a)Pay all of the child’s travel and accommodation expenses;
(b)Ensure that for the purposes of travel the child is in the company of either the father or Ms Corner or a responsible adult known to the mother;
(c)Provide the mother with a full itinerary of the child’s travel arrangements no later than forty eight (48) hours before the child’s flight to the United States of America; and
(d)Do all things necessary to ensue that the mother is to have telephone communication with the child [X] each week whilst the child is in the United States of America being Monday, Wednesday and Friday in each week at 4.00 pm local time.
For the purposes of the child [X]’s travel out of Australia to and from the United States of America the mother must:
(a)Sign all such documents necessary to permit the child [X] to travel out of Australia whilst in the care of the father or Ms Corner or responsible adult as set out in Order (7)(b);
(b)Ensure that the child has a current valid Australian passport; and
(c)Make the child’s passport available for the purpose of his travel out of Australia to and from the United States of America.
Upon the child’s return to Australia after spending time with the father in the United States of America the father must return the child’s passport to the mother as soon as possible and in any event within forty eight (48) hours.
Whilst the father is residing in the United States of America the mother must do all things necessary to ensure that the father is to have telephone communication with the child [X] by means of Skype video link between the hours of 4.00 pm and 5.00 pm Sydney time each Sunday and Wednesday or, in the event that [X] is not available on Wednesday on the Thursday immediately following between 4.00 pm and 5.00 pm Sydney time and the father is to initiate the Skype transmission.
If the child is in the care of the father on Mother’s Day, Christmas Day and New Year’s Day the father must ensure that he telephones the mother or communicates with her by Skype on each of those days.
If the child is in the care of the mother on Father’s Day, Christmas Day and New Year’s Day the mother must ensure that he telephones the father or communicates with by Skype on each of those days.
If the father is residing in Australia the child is to spend time with him as follows:
(a)During school term time on the first and third weekends in each month commencing after school on Friday and concluding at the commencement of school on the Monday PROVIDED THAT if the Monday immediately following the weekend is a public holiday then concluding at the commencement of school on the Tuesday immediately following the weekend;
(b)For the first half of the Autumn, Winter and Spring school holiday period in each year from after school on the last day of the school term until 12 noon on the second Monday of the school holiday period in 2011 and all odd numbered years thereafter;
(c)For the second half of the Autumn, Winter and Spring school holiday period in each year from 12 noon on the second Monday of the school holiday period in 2012 and all even numbered years thereafter;
(d)For half of the Christmas/January school holiday period in each year being the first half starting in 2011 and all odd numbered years thereafter and the second half starting in 2012 and all even numbered years thereafter unless the parties otherwise agree in writing;
(e)For the weekend that includes Father’s Day in each year from after school on the Friday until the commencement of school on the Monday;
(f)For a period of two (2) hours on the child’s birthday if that day falls on a school day and for a period of six (6) hours if that day falls on a weekend; and
(g)For a period of two (2) hours on the father’s birthday if that day falls on a school day and for period of six (6) hours if that day falls on a weekend.
Notwithstanding the provisions of Order (13)(a) above the child will not spend time with the father on the weekend that includes Mother’s Day but will spend time with the father on the weekend immediately following the weekend that includes Mother’s Day from after school on the Friday until the commencement of school on the Monday.
Changeover will take place at the child’s school at all times when the time spent with the father commences after school and concludes before school and at all other times will take place at the [omitted] in [omitted].
Each party must keep the other informed of their current residential address, landline telephone and mobile telephone numbers and notify each other of any changes within forty eight (48) hours.
Each party must authorise the Principal of any school attended by the child to provide to the other party copies of all school reports, newsletters, information about school photographs and all other documents regularly sent to parents of children attending the school.
Each party may attend school interviews relating to the child either separately or together and any prize giving, sporting event or other social occasion at the school regularly attended by parents of children of children attending the school.
Each party must notify the other as soon as possible and in any event within twelve (12) hours of any serious illness or injury suffered by the child whilst in their care.
Each party must notify the other of the names, addresses and telephone numbers of any medical practitioner or other health practitioner who treats the child and the name and address of any hospital to which the child may be admitted for treatment.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5495 of 2009

MR FLETCHER

Applicant

And

MS PRINCE

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the father of a boy aged 9 years who lives with his mother. The difficulties between the parties about the father’s time with the child stem from the fact that, since 2009, the father has been living in the United States in order to further his career as an [occupation omitted].

Orders Sought

The father, in his Outline of Case Document, seeks orders that would provide that:
a)The parties would have equal shared parental responsibility for the child and the parent with whom he is living at the time would be responsible for his day to day care, welfare and development;
b)When the father is living in Australia, the child would live with the father:
i)From the Friday to the Monday of the first two weekends of the month in the first and second school terms in each year;
ii)From the Friday to the Monday of the first three weekends of the month in the third and fourth school terms of the year;
iii)During the April, July and October school holidays, from the last day of school to the second Monday of the holidays;
iv)For the first half of the Christmas/January school holidays in odd-numbered years; and
v)For the second half of the Christmas/January school holidays in odd-numbered years;
vi)If the child is due to be with the father on the weekend of Mother’s Day, then from after school Thursday to before school on the Friday before the weekend, instead of the weekend;
vii)On Father’s Day from 9am to 5pm;
viii)On the child’s birthday by agreement, or for 2 hours if on a school day or 6 hours if on a weekend; and
ix)On the father’s birthday for 3 hours if on a school day or 6 hours if on a weekend.
c)When the father is living in the United States, the child would live with him:
i)For the whole of the first and third term school holidays, to take place in the United States;
ii)For half of the second term school holidays, to take place in Australia;
iii)For the first half of the Christmas/January school holidays in even numbered years, to take place in the United States; and
iv)For the second half of the Christmas/January school holidays in odd-numbered years.
d)The child would live with the mother at all other times;
e)For the purpose of the child’s travel to and from the United States, the father would have to:
i)Pay all his travel and accommodation expenses;
ii)Ensure that the child was accompanied either by the father or a responsible adult known by the mother;
iii)Provide the mother with an itinerary; and
iv)Ensure that the mother had telephone time with the child on Mondays, Wednesdays and Fridays.
f)For the purpose of the child’s travel to and from the United States, the mother would have to:
i)Sign all documents necessary for his travel;
ii)Provide all necessary authorities;
iii)Act promptly; and
iv)If the child were not at school on the last day of term, ensure that the child was delivered to the father’s parents or to Ms Corner at the [omitted] Police Station.
g)Changeover not on school days would be at the [omitted];
h)The father’s parents, Ms Corner and any other person nominated by the father would be an acceptable nominated person for pick up and return of the child;
i)If either party wished to take the child either interstate or out of Australia, they must:
i)Give 30 days notice;
ii)Provide an itinerary; and
iii)Ensure that the child makes telephone contact with the other parent at least twice a week.
j)The parties must provide the child with a valid passport and written authorisation to permit the child to depart from Australia.
k)On the child’s return from any overseas holiday the passport must be surrendered to the Registrar of the Federal Magistrates Court[1] within 7 days, who would then retain it;
[1] For some reason, the Court’s Registry is nominated
l)Whilst the child is living with either parent, each must:
i)Notify the other of any serious injury or illness;
ii)Keep the other informed of their residential address and telephone number;
iii)Provide a telephone number for contact in an emergency;
iv)Advise details of any treating doctor; and
v)Facilitate contact on Christmas Day and New Year’s Day
m)Each parent to be restrained from interfering with the child’s telephone calls with the other parent;
n)The mother must facilitate contact between the child and the father by “Skype” when the father is out of Australia;
o)If the father is outside Australia the paternal grandparents would spend time with the child on the last weekend of each month;
p)The mother is to authorise the child’s school to provide copies of school reports and notifications of sporting activities; and
q)Costs.
The mother, in her Case Outline Document, opposes a number of the orders sought by the father. In particular, she submits that the father cannot seek orders in favour of his parents when they are not parties to the proceedings.
She consents to the interim orders made by the Court on 22^nd March 2010 becoming final orders as regards what is to occur whilst the father is overseas. She seeks orders as to what will occur when the father returns to live in Australia permanently. The orders that she seeks would provide:
a)That school holidays should be shared;
b)That the child would spend time with the father during the school term:
i)From Friday afternoon to Monday morning on the first weekend after the father returns and every fourth weekend thereafter; and
ii)From Saturday morning to Monday every third weekend and every fourth weekend thereafter.

Areas of agreement

There is agreement that the child’s primary residence should be with his mother in Australia and that he should spend time with his father on a regular basis.
It does not seem to be in dispute that he has a close and loving relationship with both of his parents.

Issues in dispute

There are significant difficulties in communication between the parties. The relationship between the mother and the father’s partner, Ms Corner, is less than cordial, and there have been apprehended violence proceedings between them. The father is of the view that the mother does not support the child’s involvement in martial arts, at which he is quite proficient.
The Regulation 7 Family Consultant who prepared the Family Report, Ms G, identified the issues in dispute as;
a)How much time the child should spend with his father when he is in Australia;
b)The uncertainty of the father’s living arrangements and the effect that this may have on the child;
c)The limited time the child is currently spending with his father and the potential effect of this on him; and
d)The difficulty that the parents have in communicating about the child and how this affects him.[2]
[2] Family Report 10.9.2010 page 7 paragraph [6]

Background

The father was born in 1976. He is now 34 years old. The mother was born in 1978, so she is now 32 years old.
The parties entered into a de facto relationship on 31^st December 1999, according to the mother, or in 2001, according to the father. They separated in 2004, according to the father, or in February 2005 (mother).
There is one child of the relationship, [X], who was born in 2001. He lives with the mother.
The parties entered into consent orders before Waddy J in the Family Court of Australia at Parramatta on 27^th February 2007. Those orders provided that the child would live with the mother and spend time with the father on weekends and during school holidays.
The parties have both re-partnered. The mother lives with a man called Mr Marsh. The father commenced a relationship with Ms Corner in 2005.
There was an incident between the mother and Ms Corner in December 2007 which led to an Apprehended Violence Order being made against Ms Corner. That order expired in May 2010.
The father moved to Los Angeles in July 2009 in order to further his career as an [occupation omitted].
On 11^th September 2009 the father applied to this Court seeking urgent orders that would permit the child to travel to the United States to spend some time with him. The application was settled by Consent Orders made before Sexton FM on 16^th September 2009. The child spent 16 days with him in the United States.
The father later spent time with the child in Australia in December 2009 and January 2010.
On 11^th March 2010 the father filed another application, again seeking orders that the mother should do all things necessary to facilitate the child’s travel to the United States, this time on 26^th March 2010.
The mother filed a response on 16^th March 2010, seeking a full suite of parenting orders, covering the situation both whilst the father was in the United States and when he returns permanently to Australia.
An interim hearing took place on 18^th March 2010, and on 22^nd March 2010 the following orders were made:
i)That the respondent sign all documents and do all things necessary to facilitate the travel of the child [X] born in 2001 to the United States of America on 26 March 2010 by:
(a)delivering the child to the applicant’s parents MRS ISAAC and MR ISAAC or the applicant’s sister MS FLETCHER at the [omitted] Police Station no later than 12 noon on Friday 26 March 2010;
(b)providing to the applicant’s parents or the applicant’s sister the child’s current passport at the time of delivering the child.
ii)The applicant is to return the child to the respondent at the [omitted] Police Station on 20 April 2010.
iii)The applicant is to hand to the solicitors for the respondent a signed Memorandum of Transfer in relation to the whole of his interest in a property in the State of New South Wales by 5:00 pm on Tuesday 23 March 2010.
iv)The solicitors for the respondent are to hold the Memorandum of Transfer in Order 2 in escrow to be released to the respondent if the applicant fails to return the child to her in Australia no later than 20 April 2010.
v)When the applicant returns the child to Australia the solicitors for the respondent are to return the said Memorandum of Transfer to the solicitors for the applicant.
vi)Upon return of the child to the respondent in Australia the applicant will return the child’s passport to the respondent.
vii)UNTIL FURTHER ORDER whilst the applicant is residing out of Australia the child is to spend school holidays with the applicant as follows:
(a)for the whole of the Term 2 school holidays in 2010 and each even numbered year thereafter;
(b)for the whole of the Term 3 school holidays in each year; and
(c)for half of the Christmas/January school holidays in each year being the first half in holidays starting in odd numbered years and the second half in holidays starting in even numbered years unless the parties otherwise agree in writing.
viii)For the purposes of the child’s travel to and from the United States of America the applicant must:
(a)Pay all of the child’s travel and accommodation expenses;
(b)Ensure that for the purposes of travel the child is in the company of either the applicant or a responsible adult known to the respondent;
(c)Provide the respondent with a full itinerary of the child’s travel arrangements no later than 48 hours before the child’s flight to the United States;
(d)Do all things necessary to ensure that the respondent is to have telephone access to the child on three occasions each week whilst the child is in the United States being Monday at 4:30 pm, Wednesday at 4:00 pm and Friday at 4:00 pm local time.

A Family Report was ordered for the purposes of the final hearing, which took place on 6^th and 7^th October 2010.

Evidence

The Court was advised that the writer of the Family Report would not be required for cross-examination.
The applicant father relied on the following documents:
a)His amended application filed on 15^th July 2010;
b)His affidavit sworn on 10^th September 2009 (which was in support of his earlier application to this Court);
c)His affidavit sworn 5^th March 2010;
d)His affidavit sworn 25^th July 2010;
e)The affidavit of his mother Mrs Isaac sworn on 26^th August 2010; and
f)The affidavit of Ms Corner sworn on 26^th August 2010.
The father gave oral evidence and was cross-examined by Mr Maurice of counsel, for the mother. Mrs Isaac and Ms Corner also gave oral evidence and were cross-examined.
The father relied on a number of documents, which were tendered as evidence. They included:
·A list of clothes that the father had sought to have returned to him in 2008
·Telephone records and Skype records
·A letter dated 21^st November 2008 from the Australian Passport Office to the father
·Newspaper cuttings showing the child having participated in martial arts competitions
·A photocopy of the father’s passport showing a visa permitting him to enter the United States
·A copy of a letter dated 16 September 2008 from the father’s former solicitors, Lamrocks, to the mother relating to the issue of the child’s passport
·Letters from the Child Support Agency
·A page from [X]’s reading schedule.
The mother relied on the following documents:
a)Her response to the father’s amended application;
b)Her affidavit sworn on 16^th March 2010;
c)Her affidavit sworn on 17^th September 2010; and
d)Her affidavit sworn on 5^th October 2010.
The mother gave oral evidence and was cross-examined by Mr Givney of counsel who appeared for the father.
There were no other witnesses on behalf of the mother.

The Family Report

The Family Report was prepared by Ms G, a Regulation 7 Family Consultant. Ms G is a psychologist by profession. Ms G was not required for cross-examination by either party.
For the purposes of the Family Report, Ms G interviewed the following:
a)The father;
b)The mother;
c)Ms Corner;
d)Mr Marsh; and
e)The child.
Ms G observed the child’s interaction with both the mother and the father, on the same day.
She subsequently spoke to the mother by telephone.
In her interview with the father, Ms G noted that he was an [occupation omitted] by profession who was leaving Australia that day to return to America and was unsure when he would return. He said that he had been in a relationship with Ms Corner for six years and she has been in [X]’s life since he was three years old. He said that [X] had a good relationship with her.
The father also said that [X] had a good relationship with his parents and he believed that it was important for him to continue seeing his grandparents whilst he is not residing in Australia.
As to the fact that he was residing in the United States, the father said that he sometimes felt selfish that he was away, but also thought that he should show [X] that it is important to pursue his goals. He believed that [X] had a “fantastic” time with him when he visits. He takes time off work and spends the whole time with [X] when he is in America.
The father spoke highly of the mother’s care of [X], saying:
“She is a good mother, and [X] is clothed, warm, fed and happy”[3].
[3] Family Report page 8 at [10]
However, he was critical of the mother because:
a)She does not return his texts or emails; and
b)She does not make any effort to facilitate the relationship between [X] and himself.
The father was of the view that the mother’s attitude was caused by her dislike of Ms Corner.
The mother was described as being “anxious” at the start of the interview. She was worried how [X] would react towards her as he had been spending time with the father prior to the interview. Tellingly, Ms G noted about the mother:
Ms Prince said Mr Fletcher’s choice to work overseas and his inability to say when he is returning to Australia indicates that he is putting his career before [X]’s best interests. Ms Prince also said that Mr Fletcher also ex0pects the care arrangements for [X] to be made around his work rather than what is best for [X]. Ms Prince said she works as a [occupation omitted] and turns down a lot of work, and is not offered work, because it requires travel overseas. Ms Prince said she makes this choice as it is in [X]’s best interest, as he is her priority. She thinks work is Mr Fletcher’s priority.[4]
[4] Family Report page 9 at [12]
The mother conceded that [X]’s relationship with his father was very important and [X] wanted to see his father. However, he has more in his life, other interests outside his relationship with his parents.
The mother said that she felt intimidated by the father and Ms Corner, and nominated the [omitted] at [omitted] as a changeover place. Ms G noted:
Ms Prince said that if she felt less intimidated, the relationship between Ms Corner, Mr Fletcher and herself would improve, which would be better for [X].[5]
[5] Ibid page 11 at [16]
The mother said that she had been in a relationship with Mr Marsh since March 2009, and that he has a good relationship with [X]. He will look after [X] for her when she has to go away for work.
The Family Consultant interviewed Ms Corner, who said that she had spent a lot of time with the child since he was three years old, and they have a strong friendship. She supports the father’s application.
Mr Marsh was also interviewed. He is 38 years of age and is self employed. He said that he had a “great” relationship with [X]. He and the mother have a supportive relationship and he is more than happy to look after the child when the mother is working.
The Family Consultant interviewed [X], who spoke positively about his relationship with both of his parents. He described Ms Corner as “fun” and said he spends a lot of time with her and his father. He loved spending time with his father in America.
[X] spoke positively about living with his mother. He liked Mr Marsh, whom he referred to as “[omitted]”. He said he was happy to stay with Mr Marsh if his mother was not there.
Ms G observed the child with each of his parents. In each case, the relationship appeared to be a very good one.
When [X] was observed with his father, the Family Consultant noted:
[X] ran into the consulting room and jumped onto his father’s lap. [X] and his father were talking and laughing and tickling each other. The tickling turned into rumbling and Mr Fletcher and [X] were both laughing heartily. From the observation of [X] with his father, it seems they have a strong attachment and that they enjoy each other’s company. [X] seemed very relaxed with his father and Mr Fletcher’s responses to [X] were appropriate with what was happening for [X] in the moment. It seems that Mr Fletcher and [X] have a very warm relationship.[6]
[6] Family Report page 13 at [23]
The Family Consultant’s observation of the interaction between the mother and [X] was no less positive:
[X] was already in the consulting room when Ms Prince entered the office. [X] was immediately very affectionate towards his mother and hugged her. [X] sat on Ms Prince’s lap and they talked about the time [X] had spent with Mr Fletcher. Ms Prince showed a lot of interest in what [X] had been doing in the time that he spent with his father and [X] responded appropriately. Ms Prince and [X] seem to have a warm relationship and Ms Prince’s behaviour towards [X] was child focussed and loving.[7]
[7] Family Report page 14 at [24]
The Family Consultant’s evaluation was that the child had a close, loving, warm and cooperative relationship with each parent.
Ms G considered that it was important that the child should spend time with his father both in Australia and in the United States. His absence has an effect on the child, which would explain why he appears unsettled after he returns to live with his mother.
Ms G also considered that the mother and [X] require an opportunity for unstructured weekend leisure time, noting that “by necessity, Ms Prince is [X]’s primary carer and assumes the majority of the more structured and necessary day to day parenting tasks e.g. getting to school, homework etc.”[8]
[8] Ibid at [26]
The Family Consultant recommended that:
a)When the father is in Australia:
·[X] should spend every second weekend with his father
·[X] should spend one night with his father during the week when he is not seeing his father on the weekend
·[X] should spend half of each school holiday with the father
·Changeover should be at [omitted] at [omitted].
b)When the father is outside Australia:
·[X] spend school holiday time with the father in accordance with the order made on 22^nd March 2010
·[X] should spend from 9.00 am to 4.00 pm on one day of one weekend per month with his paternal grandparents.

Submissions

Counsel for the father, Mr Givney, submitted in the father’s Case Outline Document that it was in contemplation of the parents when they were together that it would be necessary for the father to establish [his business] in [the United States] if he wished to pursue his career as an [occupation omitted].
Further, it has to be in [X]’s best interests that the relationship he has with his father be nurtured and facilitated.
The orders sought by the father whilst he is living in the United States would provide that he has the whole of the first and third term school holidays with the child and that the parents share the third term holidays and the fourth term (Christmas) school vacations equally. Those orders, he submitted, give the mother more certainty as to when the care of the child would be with that father overseas and otherwise when he is exercising time with the child in Australia.
Otherwise, the father seeks only slight variations to the current orders with respect to his time with [X] in Australia. The father’s United States visa will expire in about April 2012.
However, Mr Givney submitted that Ms G’s recommendations about [X] spending alternate weekends and one night in the off week with the father were problematic because of:
a)The distance between the father’s residence and the child’s school;
b)The need for [X] to spend more extensive time with his father;
c)The communication difficulties between the parties; and
d)[X]’s interest in martial arts, which only his father is prepared to foster.
Mr Givney also submitted that an order should be made that, whilst the father is in America, the child should spend time with his paternal grandparents and with Ms Corner, all of whom are significant figures in his life.
It was further submitted that [X] needs to see his father as much as possible because his time with him has been significantly reduced. All that is being asked is a further three weeks a year in school holiday time. The mother would have all the weekends.
Before the father went to America, the parties shared the child’s care equally, on a week about arrangement. The parties decided that [X] would be schooled near the mother in [omitted] and spend two out of three weekends with her.
[X]’s attachment to his father needs to be maintained, and the way to do it is through an extension of school holiday time.
In answer to a jurisdictional point raised by counsel for the mother, Mr Givney submitted that it is not necessary for the paternal grandparents to be parties to the application in order for a parenting order to be made in their favour. He referred the Court to the provisions of s 60B(2)(b) of the Family Law Act 1975, which states:
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);…
Counsel for the mother, Mr Maurice, submitted that the father was clearly applying a double standard as to his attitude to the orders, in that he was seeking adherence to his interpretation of part of the orders whilst opting out of the term time with [X] in order to pursue an [omitted] career overseas. Further, he submitted, the father seemed to think that the operation of the orders for term time are automatically re-activated when he chooses to return to Australia and that at other times he is not obliged to follow the orders.
He further submitted that the father could not seek parenting orders in favour of his parents when they are not parties to the proceedings.

The applicable law

Section 60CA of the Family Law Act 1975 provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
I have done so in this case.
In order to determine what is in a child’s best interests, the Court must consider the matters set out in subsections 60CC(2) and (3). The primary considerations are set out in s.60CC(2), and are:
a)The benefit to the child in having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The additional considerations include:
a)Any views expressed by the child and the weight to be given to them;
b)The nature of the child’s relationship with each of his parents and with other persons, including grandparents;
c)The parents’ willingness and ability to facilitate and encourage a close relationship between the child and the other parent;
d)The likely effect of any change in the child’s circumstances;
e)The practical difficulty and expense of the child spending time with and communicating with each parent;
f)The capacity of each parent and others to provide for the child’s needs, including emotional and intellectual needs;
g)The child’s maturity, sex, lifestyle and background;
h)Whether the child is an Aboriginal child or a Torres Strait Islander;[9]
i)The attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents;
j)Whether there are any family violence issues;
k)Whether there is a family violence order;
l)Whether it would be preferable to make the order that would be least likely to lead tot the institution of further proceedings; and
m)Any other fact or circumstance thought relevant.
[9] Not applicable in this case
I have considered all of those matters.
The Court must also consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (see subsection 60CC(4)) and, where the child’s parents have separated, as they have in this case, have regard to events that have happened and circumstances that have existed since the separation occurred (s.60CC(4A)).
Those matters have been considered.
When making a parenting order in relation to a child, the Court must consider the applicability of the presumption in s.61DA of the Act, that it is in the best interests of the child for the parents to have equal shared parental responsibility.
I am not persuaded that equal shared parental responsibility is appropriate in this case, whilst the father is living out of Australia.

Conclusions

There has been a history of litigation between the parties every two years since they separated. It needs to come to an end. The father’s move to America to pursue his [omitted] career has been the trigger for two separate applications to this Court and has highlighted the parties’ difficulties in communicating about their child. At this stage, it appears that the father will remain living in the United States for at least another year, so there is a need for orders to be in place that will cover that situation, as well as the father either returning to live in Australia, or at least spending significant time in Australia.
It is clearly in [X]’s best interests to have a meaningful relationship with each of his parents. The Family Report shows that he has a warm and loving relationship with both of them. It is to their credit that they have brought this situation about, notwithstanding the differences between them. The father has conceded to the Family Consultant that the mother is a good mother to [X], and for her part the mother has conceded that [X]’s relationship with his father is very important to him.
There is no evidence that [X] is at risk of physical or psychological harm from abuse, neglect or family violence.
Turning to the additional considerations in s.60CC(3), it is clear from the Family Report that [X] wants to spend time with both parents. He is happy with each of them. His relationship with each of them is warm and loving. He appears to have positive relationships with his parents’ new partners, Ms Corner and Mr Marsh. There is not a good relationship between the mother and Ms Corner, but it does not seem to have affected [X]. This is to the credit of both the mother and Ms Corner.
That said, it would be in [X]’s best interests if the hostility between his mother and Ms Corner were to diminish, which would involve a degree of politeness and respect on each side.
[X] appears to have a good relationship with his paternal grandparents, and this relationship should be maintained.
There are differences between the parties about their respective willingness and ability to facilitate and encourage a close relationship between [X] and the other party. The father complains that the mother does not answer emails or telephone calls.
The mother takes exception to the father wanting to take most of the school holiday time with [X]. She said in her evidence that she had last had a holiday with her son at Christmas time in 2009. She told the Court that she would love to have quality time with her son and as at the date of hearing she had not had much holiday time with him. As an example, she said that she would like to see her grandparents in the United Kingdom, because they are old and ill.
If [X]’s time with either parent were to be significantly reduced, it would cause him a great deal of distress, because he clearly loves them both and wants to spend time with them. It is significant that both this application and the earlier proceedings in this Court in September 2009 arose because the father was applying for orders that would permit [X] to spend time with him in the United States and the mother was not allowing him to go. It must be clear that [X] wants to spend time with his father in the United States and appears to have a good time when he goes. This situation is likely to continue until well into 2012. Whilst the father is living and working in the United States, it is in [X]’s best interests for him to spend a significant amount of time with him there. He would most likely be very unhappy if he were not allowed to travel overseas to spend time with his father.
There is no evidence that [X] is in any way neglected or ill-treated on his visits to America. The fact that he is unsettled on his return does not indicate a poor quality of care by his father. Ms G explained in the Family Report at paragraph 26:
As [X] and his father have a strong relationship, Mr Fletcher’s absence does have an effect on [X], as is evidenced by him being unsettled after spending time with Mr Fletcher and returning to live with his mother.[10]
[10] Family Report page 14

Again, there is no evidence to suggest that there is any likelihood that the father will try to keep [X] in the United States and not return him to Australia.
As Ms G stated:
It is important that [X] spend time with Mr Fletcher when he is in Australia, and that [X] travel to the United States to see his father.[11]
[11] ibid
Needless to say, there are practical difficulties and expenses involved in [X]’s spending time with his father whilst his father is living in the United States. It is incumbent on the father to meet the child’s travel and accommodation costs and arrange for him to be accompanied both ways between Australia and the United States. There is no evidence that Ms Corner would not be a suitable person to accompany [X], notwithstanding the strained relationship between her and [X]’s mother.
Each of [X]’s parents has the capacity to provide for his needs, including educational and emotional needs. In this regard, it is unfortunate that the child’s reading schedule that was tendered in evidence, showing the books that he had read and the comments by his parents and others bears this unfortunate comment that appears to have been written by the mother:
“Court orders state you Ms Corner should have nothing to do with [X]’s schooling. This book is to be filled out by [X]’s father not you. This is not a competition, it’s [X] school work.
There is no Court order that I can see that forbids Ms Corner from assisting [X] with his homework, and it is regrettable that this hostile comment should have been written on that document. It would be better if such a practice were not repeated.
[X] is a boy aged 9 years and 3 months who lives in Australia but is lucky enough to spend holidays in the United States of America with his father. His father is an [occupation omitted] and his mother is a [occupation omitted]. He appears to be of normal maturity for his age, and he seemed to the Family Consultant to be well looked after, cheerful and confident.[12]
[12] Family Report page 12 at [20]
Each of [X]’s parents has a positive attitude towards him. The mother is critical of the father for not placing [X]’s interests above his career, as she has done. The father has criticised the mother’s attitude to her responsibility as a parent by acting to prevent him travelling to the United States to spend time with the father.
The only family violence issue is that there were apprehended violence proceedings between the mother and Ms Corner, which resulted in an Apprehended Violence Order being made against Ms Corner. That order has now expired.
There is a clear need to make orders that would spell out a regime of time between [X] and each of his parents, covering the extended periods of time when the father is out of Australia, which appears to be the likely scenario for about the next fifteen months at least, but also covering the situation where the father is either living in Australia or spending a substantial period of time here.
It is not in [X]’s best interests for there to be continued litigation between his parents.
The orders made need to balance the child’s need to spend a significant amount of time with his father in either Australia or America, because he misses his father, and giving the mother some leisure or holiday time with her son. Visits to America to spend time with his father are holidays for [X], but he needs holiday time with his mother as well.
I have been guided by the Family Report in this matter. Neither party sought that the Family Consultant should be cross-examined about the contents of the Report or the recommendations in it. I have not only considered the Family Report, because it is only a part of the evidence before the Court, albeit an important part of the evidence.
I am mindful of the comments of the Full Court of the Family Court in the decision, In the Marriage of Hall[13]:
(a) There is no magic in a family report. A judge is not bound to accept it and there should never be any suggestion that the counsellor[14] is usurping the role of the court or that the judge is abdicating his responsibilities,,,
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material too assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him.[15]
[13] (1979) 5 Fam LR 609
[14] Now called Family Consultant
[15] (1979) 5 Fam LR 609 at 615, per Evatt CJ, Asche SJ and Hogan J
That, with respect, is the case here.
In my view, the regime of parenting orders set out in the earlier decision of 22^nd March 2010 still provide an appropriate framework for setting out the father’s time with [X] whilst he is living in America. It is clear that this is the father’s intention for at least the next 15 months. He may be able to obtain an extension of his visa, but there is no evidence one way or the other about that.
It may well be the case that the father will return to Australia to reside permanently in 2012. However, there is no evidence one way or the other, and it is unlikely there will be for some time. All the Court can do is make provision for that eventuality.
Whilst the father is living out of Australia he would like more time with [X], but if that were the case, it would cut further into the mother’s holiday time with the child. He needs to spend leisure time with his mother as well as his father.
There should be arrangements for regular telephone communication and Skype communication between the father and [X], and the mother will need to take all reasonable steps to see that this communication takes place.
Obviously, there must be arrangements in place to cover the child’s travel to and from the United States. It would be undesirable for a further application to come before the Court debating the merits of whether or not [X] should travel to the United States to spend time with his father.
If and when the father returns to Australia, a different set of orders will need to be in place. It would appear that a pattern of alternate weekends during the school term and half the school holidays would be appropriate.
The Family Consultant has recommended one overnight period during the off week, but the father does not think it would be feasible, for the reasons submitted by his counsel at paragraph [58] above. That being the case, it is unlikely that such an arrangement would be successful, so I will not make that order.
I am not satisfied that it is appropriate to make a parenting order in favour of the paternal grandparents. They are not parties, and they can always have made their own application. That said, it is clearly in the child’s best interests to spend some regular time with his grandparents.
As for changeover, the mother has suggested the [omitted] at [omitted]. The Family Consultant has also recommended it as a suitable venue.[16] It is a more suitable venue than the [omitted] Police Station or the [omitted], as the father submits. Police stations are only suitable on a short term basis when there is a concern about a party’s personal safety, and licensed premises should be avoided where possible.
[16] Family Report pages 11 and 16
I do not consider that equal shared parental responsibility is feasible whilst the father is living out of Australia and whilst the communication between the parties is as unsatisfactory as it has been.
I will make orders accordingly.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 2 March 2011