Grella & Jamieson
[2021] FedCFamC1F 53
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Grella & Jamieson [2021] FedCFamC1F 53
File number(s): LEC126 of 2012 Judgment of: HOWARD J Date of judgment: 3 September 2021 Catchwords: FAMILY LAW – PARENTING – International Relocation – where the mother seeks permission to relocate the child’s residence to Europe – where the father had disengaged from the proceedings – where the matter proceeded on an undefended basis – findings that the mother can facilitate and foster a relationship with the father should she be permitted to relocate – permission to relocate granted. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 121.
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 69
Cases cited: Rice v Asplund (1979) FLC 90-725 Division: Division 1 First Instance Number of paragraphs: 46 Date of last submission/s: 3 September 2021 Date of hearing: 18 August 2021 & 3 September 2021 Place: Brisbane Solicitor for the Applicant: Simpson Family Lawyers There being no appearance by or on behalf of the Respondent Solicitor for the Independent Children's Lawyer: Barbara Fox Solicitor ORDERS
LEC126 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GRELLA
Applicant
AND: MR JAMIESON
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
3 SEPTEMBER 2021
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting Orders be discharged.
2.That the child B born … 2011 (also known as B) (“the child”) live with the Mother.
3.That the Mother have sole parental responsibility for the child’s long term welfare care and development.
4.That the Mother be permitted to relocate the child’s residence outside the jurisdiction of this Honourable Court to Europe.
5.That the Mother be permitted to obtain a Passport for the child without the need to obtain the consent of the Father and for that purpose pursuant to S121 of the Family Law Act leave is given to the Mother to provide a copy of these Orders to the relevant Government Authority to obtain a Passport for the child B born … 2011 (also known as B).
6.That the child spend time with and communicate with the Father at all times as agreed between the Mother and the Father in writing.
IT IS FURTHER ORDERED:
7.That the Order for the appointment of the Independent Children’s Lawyer be discharged thirty (30) days from the date of this Order.
8.That any other Orders that restrain the child B born … 2011 or the Mother MS GRELLA born … 1984 from leaving the Commonwealth of Australia be discharged.
IT IS NOTED:
A.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grella & Jamieson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
A. These reasons were delivered ex tempore on 3 September 2021 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
The matter before the Court is a parenting case. The applicant mother is Ms Grella. The mother was born in 1984 in Europe. The mother is a dual citizen of both Australia and Europe. The mother moved to Australia from Europe when she was 15 years old with her mother. The respondent father in this case is Mr Jamieson. The respondent father was born in 1980 in Australia. I note that the mother holds university degrees and was previously employed at the L University on a temporary contract. When the matter was before the Court on 18 August 2021 the father informed the Court that he was not currently working due to the New South Wales lockdown.
The parties commenced cohabitation in September 2008 in Region C. There is one child of the relationship and that is the child who is the subject of these proceedings, B born in 2011. The parties separated when the child was only five months old in 2011. The mother is currently living in Suburb M in rented accommodation and the child is attending the N School in grade 4. The child currently lives with the mother.
I note that there were family report interviews held in September 2020 and the father informed the family report writer at that stage that he was currently residing in Suburb O with his partner, Ms F and their two children Y born in 2015 and Z born in 2017. I do note when this undefended hearing commenced on 18 August 2021 the father told the Court (by telephone) he had been living in Sydney for about six months. Since the separation with the father the mother has not re-partnered. The mother seeks orders on a final basis that would permit her to relocate the residence of the child to Europe. This matter does indeed have a long history of family law litigation.
The mother originally commenced proceedings in March 2012 in the Federal Circuit Court of Australia seeking orders permitting the mother and the child to relocate to Europe. I note that shortly thereafter in about May 2012 the father commenced spending supervised time with the child at the P Contact Centre. That was pursuant to an interim parenting order made by her Honour Judge Demack in the Federal Circuit Court of Australia. I note that the evidence reveals that between 2012 and the initial final hearing in 2016 – the child’s time with the father was sporadic.
There was a trial held before Hogan J in the Family Court of Australia in March 2016. Hogan J made final orders on 22 April 2016 as follows:-
“IT IS ORDERED THAT
1. All previous Orders and parenting plans are discharged.
IT IS ORDERED BY WAY OF FINAL ORDER THAT
2. The child, B, born … 2011, live with the mother in South East Queensland.
3. The mother have sole parental responsibility for the major long term issues for the child including in respect of:
a. the child’s education (both current and future); and
b. the child’s religious and cultural upbringing; and
c. the child’s health; and
d. changes to the child’s living arrangements save for any which make it significantly more difficult for the child to spend time with each parent.
4. Except in the event of an emergency involving the child, the mother is to consult with the father about decisions to be made in the exercise of her sole parental responsibility as follows:
a. the mother shall inform the father about the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing; and
b. the mother shall give the father fourteen (14) days to respond; and
c. the mother shall consider the father’s views/response when coming to her decision; and
d. the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
5. Each parent has responsibility for the day to day care, welfare and development of the child while she is in his or her care.
6. The father shall spend time with the child at all such times as may be agreed between the parties in writing and failing agreement as follows:
a. commencing on 30 April 2016: each alternate weekend from 9.00am to 2.00pm on each of Saturday and Sunday; and then
b. commencing 25 June 2016: each alternate weekend from 9.00am to 4.00pm on Saturday; and from 9.00am to 2.00pm on Sunday; and then
c. commencing 20 August 2016: each alternate weekend from 9.00am to 4.00pm on each of Saturday and Sunday; and then
d. commencing 12 November 2016: each alternate weekend from 9.00am Saturday until 12.00pm Sunday; and then
e. commencing January 2017: each alternate weekend from 9.00am Saturday until 4.00pm Sunday.
7. After June 2017, the time the child shall spend with her father pursuant to Clause 6(e) shall, during any Queensland gazetted school holiday period, be extended such that, instead of concluding at 4.00pm on Sunday it shall conclude:
a. from the start of Term 3, 2017: at 12.00pm on the Monday; and
b. from the start of Term 1, 2018: at 12.00pm on the Tuesday; and
c. from the start of Term 1, 2019: at 12.00pm on the Wednesday; and
d. from the start of Term 1, 2020: at 12.00pm on the Thursday.
8. From the start of Term 2, 2021, the child shall spend time with the father for half of each Queensland gazetted school holiday period as follows:
a. in even numbered years:
i. for the first week of the Easter, Winter and September/October Queensland Gazetted holiday period, starting on the first Saturday after the conclusion of the school Term; and
ii. for the first week of the December/January Queensland gazetted school holiday period and each alternate week thereafter, starting on the first Saturday after the conclusion of the school Term; and
b. in odd numbered years:
i. for the second week of the Easter, Winter and September/October Queensland Gazetted holiday period, starting on the second Saturday after the conclusion of the school Term; and
ii. for the second week of the December/January Queensland gazetted school holiday period and each alternate week thereafter starting on the second Saturday after the conclusion of the school Term.
9. In the event the child is in Australia for Christmas Day, she shall spend time with her father:
a. in even numbered years: from 9.00am on Christmas Eve (24 December) until 12.00pm on Christmas Day (25 December); and
b. in odd numbered years: from 12.00pm on Christmas Day (25 December) until 4.00pm on Boxing Day (26 December).
10. In the event that pursuant to this Order, the child would not otherwise be spending time with her father on the weekend on which Father’s Day occurs, and he is able to facilitate such time, she shall spend time with him that day from 9.00am to 4.00pm.
11. In the event that, pursuant to this Order, the child would not otherwise be living with the mother on the weekend on which Mother’s Day occurs, she shall be returned to her mother at 9.00am on that day.
12. Unless otherwise agreed between the parties in writing, changeovers shall occur:
a. until 1 December 2016: at the Region C Contact Centre; and
b. from 1 December 2016: at McDonald’s Restaurant Suburb D, at Q Street.
13. Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the child.
14. The costs of the changeovers at the Contact Centre shall be met by the father.
15. Neither parent shall approach the other, or that parent’s servant or agent, during changeover.
16. Each parent shall facilitate the child communicating with the other by telephone or Skype communication at all reasonable times as requested by the child and no less than two occasions every week with each parent to:
a. ensure that the child is available to receive the telephone call; and
b. arrange for the child to telephone the other parent on the following night, if for any unforeseen circumstances, the child misses the telephone call from that parent; and
c.ensure the child has privacy during the conversation.
17. Each parent shall facilitate the child communicating with the parent, with whom she is not then staying by telephone or Skype on the child’s birthday, with such communication to occur in the manner prescribed by Clause 16.
18. Neither parent shall consume any illicit substance at any time when the child is in his or her care or within 24 hours prior to the child coming into his or her care, and shall immediately remove the child from any place in which any person is consuming illicit substances.
19. Neither parent shall enrol the child in any activity which occurs during time she is living or spending time with the other parent without first obtaining the written consent of that parent.
20. From December 2017, the mother is at liberty to suspend the child’s time with her father for a period of up to four (4) weeks during the end of year school holiday period each year for the purpose of removing the child from the Commonwealth of Australia for a holiday provided that:
a. no less than sixty (60) days prior to the proposed travel, the mother provide the father notice in writing of the proposed dates of departure from and return to Australia, the locations to be visited and the details of the accommodation at which the child will be staying; and
b. in even numbered years: the date of departure shall not occur before 27 December; and
c. not less than fourteen (14) days prior to the scheduled departure, the mother shall provide the father with a copy of the itinerary for the trip with this to include, but not be limited to, the following information: the departure and return times and dates; a contact telephone number for the child whilst she is travelling and details of addresses at which the child will be based during the travel; and
d. when the child is out of the Commonwealth of Australia, the mother shall facilitate the child’s communication with the father in accordance with the terms of Clause 16 of these Orders.
21. In the event the mother does not remove the child from the Commonwealth of Australia pursuant to Clause 20 of these Orders, the child shall continue to spend time with the father as provided for in Clauses 7 and 8.
22. In the event the mother removes the child from the Commonwealth of Australia in accordance with Clause 20 of these Orders:
a. the child’s time with her father pursuant to Clauses 7 and 8 shall be suspended during the time the child is out of the Commonwealth of Australia ; and
b. instead of spending time with the father as provided by Clauses 7 and 8, the child shall spend time with the father during those weeks of the December/January gazetted school holiday period she is present in Australia in the following manner:
i. in the holiday period commencing December 2017: for three non-consecutive periods of two nights; and
ii. in the holiday period commencing December 2018: for three non-consecutive periods of three nights; and
iii. in the holiday period commencing December 2019: for two non-consecutive periods of four nights; and
iv. in the holiday period commencing December 2020: for two non-consecutive periods of five nights; and
v. in the holiday period commencing December 2021, and for all subsequent years: for two non-consecutive periods of seven nights.
23. For the purpose of the child’s time with her father pursuant to Clause 22b, the father is to provide the mother no less than fourteen (14) days’ notice in writing of those dates during which he wishes to spend time with B and, unless otherwise agreed, the time shall occur between those dates.
24. Unless otherwise agreed between the parties in writing, or otherwise specified in these Orders, the child’s time with her father shall commence at 9.00am and conclude at 4.00pm.
25. Each parent shall:
a. keep the other informed at all times of their residential address, telephone numbers, mobile numbers and email addresses and notify the other of any changes to the same within three (3) days of such change; and
b. keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child; and
c. inform the other as soon as is reasonable practicable of any serious medical condition, or significant health issue suffered by the child; and
d. keep the other informed of any school, educational facility or extra-curricular activity provider attended by the child.
26. By this Order, the parents authorise any medical or other health professionals who treat the child to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.
27. By this Order, any school at which the child attends is hereby authorised to provide to each parent, at that parent’s request and cost, all information lawfully able to be provided to a parent about the child’s attendance, progress and participation including copies of any school reports, newsletters, applications for class photographs and the like and any information in relation to the child’s educational and social progress.
28. By this Order, any day care centre or before or after school care facility at which the child attends is hereby authorised to provide to each parent, at that parent’s request and cost, all information lawfully able to be provided to a parent about the child’s attendance, progress and participation.
29. During the time the child is with either parent, that parent shall:
a. respect the privacy of the other parent and not question the child about the personal life of the other parent; and
b. speak of the other parent respectfully; and
c. not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent or their family in the hearing or presence of the child; and
d. use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
30. The process used for resolving future disputes about the child or the terms or operation of these Orders shall be as follows:
a. the parents shall consult with an agreed Family Dispute Resolution Practitioner at a Family Relationship Centre to assist with resolving any dispute in relation to the child; and
b. they shall pay the costs of the Family Dispute Resolution Practitioner equally; and
c. in the event that, for any reason, they are unable to have an appointment with the agreed Family Dispute Resolution Practitioner or cannot agree on an alternate Family Dispute Resolution Practitioner, the mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability; and
d. the father shall choose one of the listed practitioners with seven (7) days of the receipt of the list; and
e. if the father fails to choose one of the listed practitioners within the prescribed time, then the mother may choose one of the listed practitioners.
31. Unless there are some emergency circumstances, before an application is made to a Court for a variation of this Order each parent shall take the steps referred to in Clause 30 of this Order.
32. Each of Ms Grella born … 1984 and Mr Jamieson, born … 1980 and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of B, a female born … 2011, from the Commonwealth of Australia before 1 December 2017.
33. B, a female born … 2011, is hereby restrained from leaving the Commonwealth of Australia before 1 December 2017.
34. It is requested that the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 1 December 2017.
35. Upon expiration of the period referred to in Clause 34 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watchlist.
36. Pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the child B, a female born … 2011 is permitted to have an Australian travel document.
37. The Independent Children’s Lawyer is discharged.
38. All outstanding applications are otherwise dismissed.
39. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.”
It will be noted that the orders required that the child live with the mother in South East Queensland. The Court also granted to the mother sole parental responsibility in respect of the child. The child’s time with the father was to gradually increase to every second weekend from 9 am Saturday until 4 pm Sunday. There was also to be holiday time between the child and the father. Obviously then – in the result of that trial her Honour did not grant the mother permission to relocate the residence of the child to Europe.
The mother appealed to the Full Court and there was no change to the decision in terms of permission to relocate overseas. However, I do note that by way of a variation to the order on the appeal and with the consent of the parties – the mother was granted permission to relocate with the child to Melbourne after December 2016. I am not sure what happened in relation to that order. In any event, I do note that towards the end of 2016 the father had relocated to Sydney and then he was apparently, at times, travelling from Sydney to Region C to spend time with the child. The mother’s evidence, including to the family report writer, is that from 2017 the child’s time with the father did not occur on a regular basis. The mother states that in 2018 the child spent time with the father on only four occasions.
In late 2018 the father relocated back to Queensland. Between January 2019 and March 2019 the child was spending time with the father, including some overnight time on some weekends. Unfortunately, there was an incident at a changeover in March 2019 between the mother and the father which resulted in the police making an application for a temporary protection order. Subsequently, a five-year protection order was made at the local Magistrates Court on 11 June 2019 naming the mother as the aggrieved and the father as the respondent. In February 2020 the father filed an application for contravention, stating that the mother had refused to allow the child to spend time with the father in accordance with orders. The matter was before the Federal Circuit Court of Australia on 18 May 2020 and her Honour Judge Tonkin essentially granted leave to the mother, if leave was needed, to file an initiating application seeking to relocate with the child back to Europe and her Honour transferred the matter back to the Family Court of Australia.
The father was spending some time at the R Contact Centre with the child from about mid-2020. On 25 May 2020 the mother did file an initiating application seeking permission once again to relocate the residence of the child to Europe. On 8 July 2020 the father filed a response seeking that the application be dismissed. The father subsequently discontinued his contravention application. In her affidavit filed 27 April 2021 the mother deposes to the fact that the child has not spent any time with the father since December 2020. On 14 April 2021 this Court made an order setting the matter down for a trial management hearing on 27 April 2021. On that date the father failed to appear. The father’s solicitor, S Lawyers, filed a notice of ceasing to act on 17 February 2021. The father has not filed an updated notice of address for service.
On 27 April 2021, the Court made various orders and directions which were as follows:-
“AND THE COURT NOTES:
A. That a Notice of Ceasing to Act was filed by the Respondent’s (now former) legal representatives on 17 February 2021;
B. The Respondent has not since filed an updated Notice of Address for Service; and
C. The Respondent has failed to appear before the Court today, 27 April 2021.
THE COURT ORDERS UNTIL FURTHER ORDER:
1. That by no later than 4:00pm on 18 May 2021, the Respondent father shall file and serve a Notice of Address for Service.
2. That a copy of this Order shall be sent by the Court to the Respondent father by way of email and by way of ordinary post to his current address for service situated at T Street, Suburb O Queensland.
3. That the Applicant mother’s Solicitor forthwith serve a copy of this Order on the Respondent father by way of SMS text message.
4. That the Applicant mother’s Solicitor file a short Affidavit deposing to the service effected pursuant to the preceding Order.
5. That the Independent Children’s Lawyer file and serve a short Affidavit deposing to any attempts she has made to contact and/or communicate with the father.
6. That in the event the Respondent father does not file and serve a Notice of Address for Service in accordance with paragraph 1 of this Order – then the matter shall be adjourned for a further Trial Management Hearing (by way of telephone-link) at 9:30am on 20 May 2021 in the Family Court of Australia at Brisbane.
7. That in the event the Respondent father does not file and serve a Notice of Address for Service in accordance with paragraph 1 of this Order – then the Court shall give consideration to setting this matter down for an Undefended Hearing.
8. That in the event the Respondent father does file and serve a Notice of Address for Service in accordance with paragraph 1 of this Order – then the matter shall be adjourned for a further Trial Management Hearing in person at 9:30am on 20 May 2021 in the Family Court of Australia at Brisbane.”
The father was given time to file an updated notice of service. He was given the best part of three weeks to do this. The father did not file an updated address for service. The father had essentially disengaged from the litigation. The matter came back before the Court on 20 May 2021. Again, the father failed to appear. On that day the Court made the following orders:-
“THE COURT NOTES:
A. That on 27 April 2021, the Respondent failed to appear before the Court.
B. That on 27 April 2021, the Court made an Order that the Respondent father file and serve a Notice of Address for Service by no later than 4:00pm on 18 May 2021. The Respondent has failed to file a Notice of Address for Service.
C. That on 20 May 2021, the Respondent again failed to appear before the Court in accordance with the Orders of 27 April 2021.
D. That in accordance with r.11.02(2) and r.12.13(2) of the Family Law Rules 2004 (Cth), the Court makes the following Orders.
THE COURT ORDERS UNTIL FURTHER ORDER:
1. That this matter be adjourned for an Undefended Hearing to 9:30a.m. on 30 June 2021 in the Family Court of Australia at Brisbane.
2. That personal attendance in Court by the parties and their legal representatives (if any) is required on 30 June 2021.
3. That no party be permitted to cross-examine the other (or any other witnesses) at the undefended hearing of this matter on 30 June 2021 without the leave of the Court.
4. That on 30 June 2021, this matter shall proceed by way of submissions only and the respondent is granted leave to make submissions in relation to the making of final orders in this matter should he desire.
5. That in addition to any oral submissions made on 30 June 2021, each party shall also be permitted to rely on a written outline of submissions (should they desire).
6. That by no later than 4:00pm on 23 June 2021, the Independent Children's Lawyer shall file and serve a Case Outline which particularises the Orders sought by the Independent Children's Lawyer on a final basis.
IT IS FURTHER NOTED:
E. That this matter is proceeding undefended in respect of the father’s case due to his failure to comply with procedural orders of the Court and his failure to appear before the Court at the previous two Case Management Hearings in this matter.”
The matter was then set down for an undefended hearing which was to commence on 30 June 2021. I do note that on 29 June 2021, South East Queensland went into a lockdown as a result of the pandemic. The matter was subsequently adjourned by order of the Court to 18 August 2021. On the morning of 18 August 2021, the Court received an email from the National Inquiry Centre. I am not sure whether a copy of this has been given to the other parties but it will be given to the parties. The content of the one paragraph email stated:-
“Good afternoon,
I have been contacted by the respondent in matter LEC126/2012 Mr Jamieson – he has advised the NEC that he did not see any notification of the hearing listed for 10:00am tomorrow until today, and he will be unable to attend in-person as he is on the other side of the NSW-QLD border and cannot cross due to COVID-19 restrictions. Please advise the client directly if they are able to attend via telephone/web conference, see email address and mobile number below…”
Essentially, the father contacted the Court and said he will not be able to be in Brisbane because of the closed border. He provided his email address and a mobile number.
Accordingly when the matter was called before the Court on 18 August 2021 I took appearances from those present in the courtroom including Ms Simpson, solicitor for the mother, and Ms Fox, the Independent Children’s Lawyer. The Court telephoned the father on 18 August 2021 for his appearance. On 18 August 2021, the Court heard oral submissions from Ms Simpson, solicitor for the mother, Ms Fox, the Independent Children’s Lawyer and the father made submissions by telephone. The Court pointed out to the father that it was very difficult to hear his oral submissions due to the telephone line having a bad reception and what I perceived to be the father’s somewhat erratic behaviour on the telephone. The father then terminated the telephone call to the Court. The Court attempted to call the father back. The father again terminated the telephone call that was made by my Associate.
I was concerned that the father might want to make a further submission so on 18 August 2021 I issued the following order:-
“THE COURT ORDERS UNTIL FURTHER ORDER:
1. That the Respondent father has leave to file and serve written submissions in response to the submissions made by Ms Simpson, Solicitor appearing on behalf of the Applicant mother and Ms Fox, Solicitor appearing as the Independent Children’s Lawyer on 18 August 2021.
2. That in the event that the Respondent father decides to file and serve a written submission as contemplated in paragraph 1 above herein – the Respondent father should include the precise orders that he is seeking on a final basis.
3. That in the event the Respondent father chooses to file and serve a written submission (as referred to herein) then such written submissions must be received by the Court (filed) and delivered to the other side (served) by no later than 4:00p.m. on 26 August 2021.
4. That in the event the Respondent father does not file and serve written submissions (as referred to herein) then the Court shall proceed to deliver Judgment in this matter on a date to be fixed.”
This essentially gave to the father leave to file and serve a written submission and he was given until 26 August 2021 to do so. The father has not filed any written submission. After 26 August 2021, the Court having not received any further submission from the father, reserved judgment. Whilst the judgment was reserved, the Court received (pursuant to the protocols which are in place between the various State Government Child Protection Departments and the Federal Courts dealing with family law) correspondence and information from the Department of Communities and Justice New South Wales.
That correspondence and information has been made an exhibit today. The Court forwarded copies of those documents to all of the parties: the Independent Children’s Lawyer, the lawyer for the mother and to the father. What those documents indicate is that interim care orders were made in respect of the children known as Z and Y. Those children are the children of the father and the father’s new partner. Z was born in 2017. Y was born in 2015. The order was made on 10 August 2021. The order was made pursuant to section 69 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The children were taken into State care.
Of particular concern to this Court is the fact that when the matter was before me on 18 August 2021 the father did not bring to the attention of the Court that this had occurred. In any event, what I can say is this – from what I was able to discern from the father’s oral submissions made on 18 August 2021 he generally seemed to be against the proposition that the mother should be given permission to relocate the residence of the child to Europe. However, I do note that there is evidence that the child told the mother that the child herself had been told by the father that if the child really wanted to move to Europe with the mother then it seemed like he would not stand in the way.
After the Court received the correspondence from the Department of Communities and Justice New South Wales – the Court relisted the matter for further submissions in relation to the undefended hearing which is why the matter is before the Court today on 3 September 2021. The parties are represented today to this extent: Ms Simpson appears again for the mother. Ms Fox, the Independent Children’s Lawyer, appears again. At the hearing today on 3 September 2021 the father was again contacted by the Court but his number was, it seems, now disconnected.
Best interests of the child paramount consideration
In determining the best interests of this child, the Court must of course have close regard to Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA requires that in deciding whether to make a particular parenting order in relation to a child a Court must regard the best interests of the child as the paramount consideration. How it is that a Court is to determine what is in a child’s best interests is then set out in section 60CC of the Act. The primary considerations as stated in section 60CC(2) and (2A):-
“Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's 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.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
The child clearly has a close and loving relationship with her mother. As to the relationship between the child and the father, there also is a loving and affectionate relationship between the child and the father.
The child now, of course, is 10 years old, much older than the last time the matter was before the Court on a final hearing. At that stage I think the child was only approximately five years old. The Court has the benefit of the more recent family report from Ms U which will be exhibit 2. It is a family report dated 30 November 2020.
Further in relation to the father’s relationship with the child – the Court has the benefit of the family report. I note the observations of the interactions between the child and the parents are included from paragraph 112 through to 115 of the report. Of particular note is the relaxed and affectionate interactions between the mother and B. Also of particular note is the fact that the child jumped out of her chair and greeted her father with affection when he came into the room. The father was affectionate, positive and very enthusiastic in his interaction with the child and the two chatted comfortably and drew together on the whiteboard.
I also note that there were cordial and affectionate interactions between the child and the father’s new partner Ms F and the child’s half-siblings Y and Z. These are recorded in paragraph 115 of the family report. So it is very clear to the Court that there are established bonds of affection between the child and the mother on the one hand but also, importantly, there are established bonds of affection between the child and the father. The very great difficulty for this child has been, of course, that the father himself has disengaged from complying with the Court orders. The Courts cannot force parents to take advantage of orders that are made in their favour. Orders were made by the Court for this father to see this child every second weekend and holiday time, etc, but this father has not done it. He has absented himself from the child’s life for his own reasons. He moved away in 2016. He came back. He moved away again in 2020.
Even when he was in South East Queensland it is very apparent from the evidence that he did not put in the hard yards. He did not make sure he was there for the child – even though as can be seen the child was very fond of him. The mother, on the evidence that I have read, has encouraged the child’s relationship with the father. The fact that this child was observed relatively recently by the family report writer to have such positive interactions with the father speaks volumes in this respect: it shows to the Court that the mother must be promoting the relationship between the child and the father. It is an important point to note because the mother’s primary application is for permission to relocate the residence of the child to Europe.
The child has expressed views that she wants to go to Europe. This is clear from the interview that was held with the family report writer. I note from paragraphs 94 to 111 of the family report it is stated:-
“CHILD- B aged 9 years
94. Ms Grella described B as "a little ray of sunshine, just the best little person ... I'm just so proud of her, nothing really gets her down, she's so positive, active, inquisitive". Ms Grella said that B loves school and is a high achiever, getting A grades in most subjects. She said that B's teachers all give very good feedback about her engagement and behaviour. Ms Grella said that B has good social connections and is "a social butterfly, confident socially and in general... she's a little achiever, despite everything she's thriving". Ms Grella said that she and B have a very good relationship with her and "I think we 're very close, given the situation it's just me and her 95% of the time ... I try to have an open relationship, want her to feel free to express herself, I don't want her to form views to please me".
95. Mr Jamieson described B as "very forward, well spoken ... independent, always has been ...great sense of humour ... I haven't seen a bad part about her, she's always real bubbly, excited about every adventure she goes on". Mr Jamieson said that he is aware that B does very well at school and is "teacher's pet she says ... very brainy". Mr Jamieson said that B has a good relationship with him and "when we 're together it's great, you can't separate us ... she 's always happy to see me, never wants to go home, loves up, has never been quiet or sad". He advised that B has known Ms F since she was three or four years old and their relationship is "great... when Ms F is there she sometimes ditches me for Ms F, they get on real good". Mr Jamieson said that B has a very good relationship with her sisters and enjoyed seeing her sisters at a visit and that Y in particular misses B very much and cries when talking about wanting to see her.
96. B presented as a bright, friendly and articulate little girl. She separated easily from her mother to enter childcare, though expressed concern during the course of the day that her mother might be lonely waiting without her. B was reassured by her mother that that would not be the case. B accompanied the writer willingly for an interview, with this occurrmg after observations of her spending time with her father had occurred. B became emotional and tearful at some stages during the interview.
97. B said that her understanding of why she had attended Child Dispute Services was that her parents "have trouble agreeing on something". She said that she had read the Court's booklet 'Why am I here?"
98. When asked what she thinks about school B said "I love it ... I'd also like to do it in
Europe". B said that she likes "learning new things" and enjoys maths, science and English. She spoke in glowing terms about her teacher Mr V who she said has won an award for his teaching and "he's funny, he's kind, he doesn't lie". B said that she does not get into trouble at school and named several friends that she plays with. B said that she is not worried about anything at school and feels safe there.
99. When asked about her mum B said "I really love my mum ". She said that she likes that her mum "is funny and she makes me laugh". She said there isn't anything that she does not like about her mum. B said that when she is in trouble her mum "just gets a little angry". She said that there is nothing worrying her at home "except when my cats go missing". She advised that she feels "very safe" with her mum.
100. B volunteered that "sometimes when I go to the centre Mum asks me 'do you want to go outside with just Daddy?' ... But I'm a bit worried that he might steal me". She said that she did not know why she was worried about this happening but then said "I think from the time he was chasing us in the car".
101. B expanded on what happened on that occasion advising that she had been to her dad's house and then went back to her mum and that then her dad chased them in the car. She said "/ was bawling my eyes out". At this point B became distressed and cried quietly.
When asked if her dad had ever done anything before that that had scared her she said "/ can't remember".
102. When asked how she felt not seeing her dad for a long time after that happened B said ''fine ... I was very worried after that but I wasn't worried about not seeing him".
103. B was asked to describe her dad and said "sometimes he's a bit .frightening but other times he's nice". She said that she can remember spending nice times with her dad but said that she has trouble remembering much about their time together advising that she was little. With regard to her visits with her dad now B said "it's fine, I think because we 're getting looked at". When asked how she would feel if there wasn't another person there she said "a bit scared" advising again that this is because he might steal her.
104. The writer asked B if her mum and dad are friends and she said "I don't think so, I don't know ... Dad talks a bit badly of Mum... that was a long time ago". B became quiet at this point in the interview appearing to be suppressing emotion. The writer asked if this was a hard thing to talk about and she nodded.
105. B said of her dad's partner Ms F "I think she's very nice ... I like seeing my sisters". B said that she did not wonder why she wasn't seeing her dad during the period there was no contact between them advising "/can't really remember".
106. B said that she speaks English at home with her mum and can also speak and understand her mother’s first language. She said that it is easier for her to speak this when she is in Europe "because everyone else is".
107. B said that "all of my family" is in Europe. When asked what she thinks of Europe she said that when she is there "I don't want to leave". B began to cry and flushed red in the face and said "I just wanna have my family around ... every time at school we have grandparents' day and I don't have anyone ... it's really fun seeing them when we go over ... Mummy loves it, she 's always happy and not every really sad except for when we leave".
108. B said that her mum is sad at home sometimes "especially right now ... she says she doesn't want to be in this country". The writer asked B if part of the reason she would like to live in Europe would be to make her mum happy and she nodded. B then said "and it would make me really happy, I would have my family, my grandparents can come to grandparents' day... and I would still see Dad, Mum said it would be flipped around, we would come to Australia once a year". B acknowledged that she would be "a little bit sad" to leave her friends behind "but I will get to visit and meet them again".
109. When asked what her dad thinks about Europe B said "he hates it" and said that she does not know why this is. B said "it makes me really sad that Dad doesn't want us to go ... but when Mummy's sad I'm always really sad". B said that talking to her dad via Skype "would be ok, Mum says it would be ok".
110. B acknowledged that she would miss her dad "maybe a little bit". She added "him and Ms F get into fights and yell ... !feel a bit scared and worried".
111. B said, returning to the topic of Europe "just a quarter of me doesn't want to go and the rest wants to". She said this is because she will miss people here. When asked how she will feel if the Judge says that she can't go B said "I'd feel deflated, really sad ... Mummy would be really upset and I would too". B said (referring to her dad) "sometimes I feel worried that he'll be angry about what I've said" clarifying that she meant what she had said about wanting to move to Europe.”
It is very apparent that this 10 year old child who is, according to the family report writer, bright, friendly and articulate was very clear in her view that she wanted to relocate with her mother to Europe. The child told the family report writer, for instance, that when she is in Europe she does not want to leave. She pointed out she has a lot of family around including, it seems, her grandparents.
The child told the report writer it made her sad that her father did not want her to go to Europe. She said that she would miss her dad maybe a little bit. She did point out that he and Ms F get into fights and yell and she felt a bit scared and worried. She said:-
“Just a quarter of me doesn’t want to go to Europe but the rest wants to go.”
The child is 75 per cent in favour of going to Europe. She clarified what she meant in relation to some of her comments. In the last sentence of paragraph 111 of the family report says, as noted above:-
“B said (referring to her dad) "sometimes I feel worried that he'll be angry about what I've said" clarifying that she meant what she had said about wanting to move to Europe.”
So the child was worried about what the father will say when he finds out she wants to go. The father already knows, it seems to me, that the child wants to go to Europe. Of course, it goes without saying that any decision in relation to a relocation including an international relocation is a decision based on the best interests of the child. The family report is one piece of evidence which the Court takes into account. The father raised the concern with the family report writer that the mother would not support B having a relationship with him if the mother relocates to Europe with the child. The weight of the evidence does not support such a conclusion.
There was a period of time where the actual substantive order was not being strictly followed by the mother. That was after the incident which led to the domestic violence order. The mother had suggested alternative arrangements to the father which he did not take up. It is the case that the mother had facilitated the child’s time with the father over, according to the family report writer, some years following the making of the final orders. The orders themselves were essentially abandoned by the parties in favour of an ad hoc arrangement which occurred by agreement. The family report writer notes in paragraph 128 that the child continued to have positive feelings towards her father. And the family report writer makes the point in paragraph 128:-
“128. I think given that she has always been solely cared for by the mother this would not be the case were it not for the mother supporting her to have a relationship with her father in the past.”
That’s the same conclusion I reached having read the evidence and the family report. Obviously, moving to Europe would significantly impact the ability of the child to spend time with the father. I make the point at the outset he has not shown much of a propensity in recent years to actually spend time with the child. Now, having said that I note that he has had his own demons and difficulties to deal with. I note paragraph 126 highlights the long history father has had with regulating his anger. The report writer points out a concerning history of family violence perpetrated by the father towards the mother and in 2019 there is referred to a brief relapse in illicit substance use.
Indeed, in exhibit 1 it is apparent that in August this year the New South Wales Department of Communities and Justice in coming to a conclusion that Z and Y needed to be taken into care did so as a result of an admission made by the father’s current partner, Ms F, relating to her recent and persistent use of the illicit drug known as ice. The father denied problematic alcohol consumption or ice use. However, police information and information from other sources provided to the News South Wales Department indicated that the father has been using ice and abusing alcohol. This led to the department holding significant safety concerns in relation to escalating conflict from the father towards Ms F following what was then a recent separation.
Another matter of particular concern was the transient nature of the lifestyle of the father and his current partner. In exhibit 1, I note that the information provided by the N.S.W Department of Communities and Justice includes the following paragraph:-
“DCJ holds significant safety concerns in relation to the parents’ transience over the past 12 months and the children’s experience of frequent changes to their care arrangements. Their transience appears to have been in the context of alcohol and ice abuse. This appears to have impacted on the parents’ ability to manage their relationships, finances and tenancies.”
So whereas there was evidence in the family report that during 2019 the father had relapsed and was using illicit drugs, there is further evidence now in exhibit 1 that the father and his current partner, Ms F, have been using illicit drugs, namely, the drug known as ice. There is also evidence of the father’s misuse of alcohol.
As part of the family report Ms U recommended:-
“RECOMMENDATIONS
133. That pending a final agreement or Judicial decision in this matter B's time with the father progress to four hours of unsupervised time one day per fortnight, with this time to occur in a public place and with her siblings (and step-mother) also in attendance. If this arrangement progresses without difficulty; time could then progress to day periods over a period of months.
134. That any changeovers for B now and in the foreseeable future be facilitated by a contact centre.
135. That B be permitted to relocate to Europe with the mother.
136. That B communicate with the father and her siblings via video-chat at least once per week during periods that she is overseas. In addition, that B be permitted to initiate contact with her father and siblings via electronic means over and above this time according to her wishes.
137. That during holiday periods that B returns to Australia, B spend unsupervised day periods with the father and her siblings (and step-mother) within the Region C area. If no difficulties arise with this arrangement during the first year, brief overnight periods could be introduced the following year, lengthening over time.”
Of note is the fact that the family report writer recommended a progression to four hours of unsupervised time one day per fortnight for the father with the time to take place in a public place in Region C with the child’s other siblings and the stepmother also to be in attendance. It was said that if the arrangement progressed without difficulty, time would then progress to day periods over a period of months.
There was a recommendation that the mother be permitted to relocate the residence of the child to Europe. As I noted earlier, of course, that issue is a matter for the Court. But I do note the family report writer’s recommendation. The family report writer was clearly satisfied that the child is mature enough to maintain her relationship with her father and maintain communication with the father and her siblings via video chat from overseas and the family report writer was satisfied that the child would be able to spend time with the father in person in Australia during holiday periods.
In these Reasons for Judgment I have had regard to all of the subsections in section 60CC itself including subsection (3). I have referred to the views expressed by the child and the nature of the relationships between the child and the parents and other persons. I have referred to the extent to which, in particular, the father has failed to take the opportunity to spend time with the child. I have referred to the failure by the father to fulfil his parental obligations in respect of the child by essentially disengaging (to a large extent) from the life of the child. I have had regard to the change in circumstances that would come about in the event of the child moving overseas with the mother. I have had regard to risk issues relating to family violence as well the misuse of drugs by the father and his current partner and the misuse of alcohol by the father. In this regard I note the very recent evidence that the father’s two children with his current partner have been taken into State care in New South Wales.
Weighing all the matters in the balance, the view that I have reached is that it will be in the best interests of B if the mother is granted permission to relocate the residence of the child to Europe. In terms of what the order should be in relation to time, I think the Independent Children’s Lawyer is correct. The father’s disengagement from the litigation and his non-attendance today on 3 September 2021, his unacceptable presentation to the Court via telephone on 18 August 2021, his termination of the telephone call that the Court had made to him on 18 August 2021, his further termination of another call that the Court made to him on that date to try to re-engage him in the process, his failure to file an updated notice of service, his failure to be candid with the Court in relation to the current circumstances relating to Y and Z, the more recent events in New South Wales with the removal of Y and Z from the care of the father and his current partner Ms F, these are all factors which the Court has taken into account.
The Court notes in particular that the mother in the current case has, on occasions, acted protectively in relation to the child when there has been issues of family violence. It may be the case that her actions were not strictly in compliance with the then operative parenting orders, however, the mother did not seek to remove the child from the father’s life and made arrangements for the father to see the child – it seems some of which he took up but not many. His time with the child has been only sporadic. He only has himself to blame in respect of this. He had orders in his favour in terms of time but he disengaged. He has lost interest it seems to me. That could be as a result of the use of ice. It could be as a result of the use of alcohol. It is not altogether clear at the moment precisely what has happened. But the Court is satisfied that even from Europe this mother will continue to promote the child’s relationship with the father and I make that finding. It will be apparent from these Reasons for Judgment that I am of the view that there has been a significant change in circumstances since the making of the order by Hogan J in 2016. Those changed circumstances include – the child is now much older (10 years old); the father has moved away and disengaged from the child’s life; the father and his current partner have had their two children removed from their care by the Child Protection authorities in New South Wales. The requirements of a significant change in circumstances have been readily met: Rice v Asplund (1979) FLC 90-725.
The mother is the primary carer of the child and her family are all in Europe. She has wanted to move back to Europe for many years. It seems to me apparent that it will be in the best interests of this child to grant the mother permission to relocate the residence of the child. The mother will clearly have the emotional and other support from her own family in Europe. The orders proposed by the Independent Children’s Lawyer and I understand supported by the mother are appropriate.
The Court has had regard to the question of parental responsibility and the various sections that relate thereto, section 61DA and other sections connected with that, section 65DAA. The mother has had sole parental responsibility for a very long time with good reason. That was the conclusion reached by Hogan J in 2016. The father has barely been in the child’s life. There needs to be an order continuing in relation to sole parental responsibility.
There will be an order for sole parental responsibility. Any presumption in relation to equal shared parental responsibility has been rebutted by the evidence of family violence, drug abuse and the disengagement by the father in relation to the time with the child. It would be contrary to the child’s best interests for there to be an order for equal shared parental responsibility. The presumption in section 61DA is rebutted. The Court is therefore not required to consider section 65DAA. In any event, I would add by way of reasons that an order for equal time would not be in the best interests of this child. There are too many risk issues at play including the father’s history of misuse of drugs and alcohol as well as family violence and added to that the father’s transient lifestyle and his inability to make himself available to spend time with the child. Notwithstanding all those things, the mother has continued to promote the child’s relationship with the father and that is apparent from the family report.
Any orders that might have been contemplated under 65DAA(1), which is an equal time section, or 65DAA(2) (the substantial and significant time section) would not have been in the best interests of the child in any event and quite apart from anything else, the parents currently live in different states. But the Court has concluded (on balance) having regard to the relevant evidence and the various sections of the Act that the best interests of the child will be served by permitting the mother to relocate the residence of the child overseas. In those circumstances, there will need to be orders in relation to the obtaining of a passport and dispensing of the need for the father to sign the passport application form.
Given the father’s non-involvement at this hearing, it seems to me that the orders proposed in the case outline of the Independent Children’s Lawyer filed 26 June 2021 are appropriate and I will make those orders now. That document will be an exhibit in the hearing. All previous parenting orders will be discharged; the child can live with the mother; the mother shall have sole parental responsibility; the mother is to be permitted to relocate the child’s residence to Europe; the mother will be able to obtain a passport for the child without the necessity of the father’s written consent or any consent; the child shall spend time with and communicate with the father at all times agreed between the mother and the father in writing. I am confident that this mother will take steps to ensure that the child B continues to communicate with the father electronically and in person. I am satisfied and I find that this mother will make arrangements when it is appropriate and when it is safe for the child to travel to Australia and spend time with the father. It may even be the case that – if the father is able to get past his difficulties with alcohol and drugs – that the father may be able to spend time with the child in Europe. That’s a matter for the father and the mother. Any such arrangements have to be by agreement and it is better for those agreements to be in writing.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 23 September 2021
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