GREENFIELD & CONLEY

[2019] FCCA 2884

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREENFIELD & CONLEY [2019] FCCA 2884

Catchwords:
FAMILY LAW – Parenting – where overseas parenting orders made in the United States – where overseas holiday dates and durations differ from Australian school holidays – where appropriate to give effect to the spirit, if not the letter, of the overseas orders –  restraint on overseas travel – where one or both of the parties is highly mobile – where mother is a citizen of another country – neither parent permitted to travel outside Australia with the child – where father commenced concurrent proceedings overseas – father restrained by injunction from continuing proceedings in overseas jurisdiction.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR GREENFIELD

Respondent: MS CONLEY

File Number: DNC 314 of 2019

Judgment of: Judge Young

Hearing date: 27 August 2019

Date of Last Submission: 27 August 2019

Delivered at: Darwin

Delivered on: 27 August 2019

REPRESENTATION

Counsel for the Applicant: Dr Brasch QC

Solicitors for the Applicant: Connolly Suthers Lawyers

The Respondent: In person

BY CONSENT UNTIL FURTHER ORDER:

1. That the child, X, born … 2013, spend time with the father as follows:-

   (a)During the October school holiday period 2019;

   (i)For the second week of the school holidays from 12noon Sunday 6 October 2019, until the commencement of school on Monday 14 October 2019.

   (b)During the Christmas school holiday period 2019;

   (i)For the first three (3) weeks of the gazetted Northern Territory Christmas school holidays inclusive of Christmas Day.

   (c)During the Easter school holiday period 2020;

   (i)For the second half of the school holidays from 10:00am Wednesday 15 April 2020, until the commencement of school on Monday 20 April 2020.

2. That during the school term, the father have the option of spending further time with the Child in Darwin on two (2) occasions throughout each school term commencing from afterschool Friday until the recommencement of school Monday morning (or Tuesday if Monday is a public holiday) or as otherwise agreed between the mother and the father. The father must provide written notice to the Mother 14 days prior to the commencement of his time with the child.

3. That neither the mother nor the father be permitted to travel outside Australia with the child. 

4. That the father be restrained by injunction from filing any further proceedings in the United States of America (“USA”) with respect to the care arrangements for the child.

THE COURT FURTHER ORDERS:

1. That pursuant to s.11F of the Family Law Act 1975 the parties attend reportable child dispute conference at the Federal Circuit Court of Australia Darwin on 25 September 2019 at 2.00pm with a family consultant, to discuss the care, welfare and development of the child X born … 2013 in an endeavor to resolve any differences between the parties in relation thereto AND the parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person the consultant must report the failure to the court with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance NOTING that the father has leave to attend by telephone should he not be in the Darwin locality.

2. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

3. That the matter be adjourned for further mention to 9:30am on 18 October 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 314 of 2019

MR GREENFIELD

Applicant

And

MS CONLEY

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning X, who is six years old.

3. On 5 February 2018 a judge in the City A  Juvenile and Domestic Relations Court in the United States made orders concerning X (“American orders”). The orders are annexed to an affidavit filed by the father on 2 July 2019. The orders, in very summary terms, provide that both parents were to undergo an alcohol assessment including a liver function test and comply with any recommended treatment. It’s not in issue that both parties have complied with those orders and furthermore that the guardian ad litem who is referred to in those orders, and who I take to be fulfilling a role in that court equivalent to an independent children's lawyer under the Family Law Act, was satisfied that both parties had complied with those orders.

4. Accordingly the live with and spend time orders, to use an Australian description, in the American orders came into effect. They provided for the child to live with the mother and spend alternate weekends with the father and also during the United States (“US”) summer break, which would be July or thereabouts, subject to the father having successfully completed some unsupervised visits with the child, which it’s not in issue he did. He was to have three weeks with the child, with such weeks to be mutually agreed upon, and three consecutive weeks. In addition the parties were to alternate other holiday periods.

5. Not surprisingly, the US appears to have a different holiday regime to Australia and it’s hard to find precise equivalents of term holidays, or the like, but I’m satisfied that the American orders contemplated that X would spend block time of at least a week with his father on alternate Christmases, Thanksgiving and Easter spring break extended school holidays. Just what that would mean in practical terms I’m unable to say because there is no real evidence before me about how long those holidays might be. 

6. The parents moved to Australia. The father, who is an Australian citizen, is living in Perth. The mother, who is a US citizen, has moved to Australia and has been living in Darwin since 2018. She was, at least in 2016 to 2017, a member of the Employer B stationed in Country C. Her contract appears to have come to an end and she then moved to Australia, she says, in order to facilitate X spending more time with his father.

7. Regrettably the parties have been unable to agree about how to deal with the issue of the major discrepancy between US holidays and Australian holidays and how the spirit, if I can put it that way, of the American orders, if not the letter, should be observed. 

8. I have formed the view that, for whatever reason, the parties have great difficulty communicating and hence the renegotiation of something like that has proved beyond their respective capacities. When the matter first came on I made an order that they attend mediation. Unfortunately that did not result in a resolution.

9. I should mention something else. In the mother’s affidavit material she refers to an incident in August 2018 when the child was in the US with the father. The mother was in the US as well but in a different city. There was a report of a suspected physical and/or sexual assault on the child by the father by someone associated with the father. The police investigated that matter. The mother has annexed a copy of the police incident report to her affidavit. It’s clear from the report that that incident was then referred to the relevant child welfare authorities in City D.

10. Thereafter there are no documents that tell me what happened. The mother conceded from the bar table today that the City D child welfare authorities referred the matter back to the person who had been the guardian ad litem in the parenting proceedings in City A and that after consideration the guardian ad litem decided that there was no reason to take any further steps and the City A orders ought to be given full effect. 

11. I take it that the allegation, which in any event appears on its face vague in the extreme, was, to the mother’s credit, not one that was brought by her but by an independent third party. It’s clear from the material in the affidavit that she did not seek to prosecute that matter and she was in position of a bystander so to speak and took, it would appear, a reasonable and objective attitude to what had arisen. I’m also satisfied that she has since then facilitated X spending extended time with the father.

12. As matters have turned out today in discussion between the parties, counsel and myself, acting, despite my protestation, effectively as a mediator, the parties have reached a significant degree of agreement, at least on an interim basis, which frankly is encouraging to me and reflects the basic reasonableness of the parties – when they can communicate.

13. The gist of what was agreed is as follows. I think it can be fairly said, that these are matters that are agreed and can be reflected in orders properly called consent orders as follows and I propose to express these in terms of orders. There will be an order that X is to spend time with his father for one week in the Northern Territory October school holidays from noon on Sunday, the 6^th, through to before school on Monday, the 14^th.

14. There will be an order that X is to spend time with his father for three weeks over Christmas, and I think it’s agreed, that that ought to be the first three weeks of the holiday, which is including Christmas Day. There is also agreement that X is to spend time with his father for half of the Easter holiday in 2020. Since the Easter holiday is 10 days as best I can calculate it would be five days each. So X will be with the father from 10:00 am on Wednesday, 15 April, to before school on Monday, 20 April.

15. Finally, I propose time orders that X spend time in accordance with the proposed order 6A in the father’s interim orders. That is on two occasions throughout each school term commencing from after school, Friday, until recommencement of school on Monday morning, or Tuesday morning, if Monday is a public holiday, or otherwise agreed. The father must provide written notice to the mother 14 days prior to commencement of the child’s time with him.

16. In relation to travel I was asked by the father to make an order restraining each party from travelling overseas with the child until further order. I propose to make that order. The mother opposed that order. She said that her parents are in poor health and she may need to travel to the US at short notice. She also pointed out that the orders of the US court recognised that her employment would very likely over time involve overseas travel, for example her employment with the Employer B in Country C. I acknowledge that there is real substance in what she says about that and I would be very reluctant to make an order, considering that the order is that X live with her and that the US orders, of which I’m trying to give effect to the spirit, places X in her care.

17. It is with some reluctance that I have come to the view, at least on an interim and temporary basis, that such a restriction is necessary. The reason why I have considered it is necessary is that it is clear enough that the mother is highly mobile (probably the father is as well). She is a US citizen and appears to have the resources to travel to the US or elsewhere easily and I suspect that she also has employment skills which are probably transferable internationally as well without too much difficulty.

18. Considering that there has been a second bout of litigation and that the parties haven’t been able to agree, I’m concerned about the level of hostility or acrimony between the parties and also concerned about the nature of some of the allegations that have been raised, which I have dealt with, that a particular party may, however impulsively, be tempted to leave Australia with X while these proceedings are on foot. I propose, and I think there is a not insignificant risk that the parent may not return to Australia. In the circumstances I propose to make an order restraining either party from travelling outside Australia with X until further order. If the mother needs to travel, she has shown that she is able to prepare court documents at relatively short notice to make an application, which would then be considered.

19. I also propose to make an order by consent of the father, that he be restrained from commencing any parenting proceeding in the US until further order. I will note that the father has informed the court that he has discontinued the proceeding in the US relating to allegations of contravention of the orders by the mother.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:         10 October 2019