Harbin and Harbin
[2008] FMCAfam 646
•27 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARBIN & HARBIN | [2008] FMCAfam 646 |
| FAMILY LAW – Children – international relocation. |
| Family Law Act 1975, ss.61DA, 65DAA, 60CA & 60CC |
| Rice v Asplund [1979] FLC 78,904 U & U (2002) 211 CLR 238 |
| Applicant: | MR HARBIN |
| Respondent: | MS HARBIN |
| File Number: | BRC 6276 of 2007 |
| Judgment of: | Howard FM |
| Hearing dates: | 19 & 20 June 2008 |
| Date of Last Submission: | 23 June 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 27 August 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Charles Cooper Lawyers |
| The Respondent in person: | Ms Harbin |
ORDERS
That all previous parenting orders be discharged.
That the child, [X], born in 2000, live with the father in Australia.
That the parties have equal shared parental responsibility in respect of the child.
That the child spend time with the mother in England as agreed between the parties, and failing agreement for each Christmas school holiday period (December/January) from the end of the first week of the holiday period and to be returned to Australia five days prior to the commencement of the new School term.
That the father and the mother jointly share the cost of the child’s return airfare ticket to England in order to facilitate the time which the child will spend with the mother each year in accordance with order 4 herein.
That the child spends time with the mother during all reasonable times whilst the mother is present in Australia during School term as agreed between the parties, and failing agreement as follows:
(a)upon the mother giving 21 days written notice of her intention to be present in Australia, the child shall spend time with the mother (such time being during school term time) no more than once each term and in a block of time no longer than two weeks;
(b)in the event that the mother takes up such an opportunity for the child to spend time with her in Australia during School term, the mother is to ensure that the child attends her regular school and attends her other regular extracurricular activities;
In the event that the mother is present in Australia during the child’s Easter (or end of first term holidays, if they are not the same) then the child shall spend one half of such school holiday period with the father and one half of the school holiday period with the mother.
In the event that the mother is present in Australia during the child’s June/July school holidays or September/October school holidays, then the child shall spend the entirety of such school holiday period with the mother provided that in any given calendar year the mother is only entitled to exercise her right to spend time with the child during one of either the June/July school holidays or alternatively the September/October school holidays (unless otherwise agreed between the parties).
In the event that the mother intends to exercise her right to spend time with the child during either of those school holiday periods mentioned in paragraphs 7 and 8 herein, the mother must provide to the father two months written notice of her intention to do so.
This paragraph (10) shall only become operative in the event that the mother returns to live on a permanent basis at the Gold Coast, Queensland, Australia. If that event occurs:
(a)the child shall live with both the father and the mother in a week about shared care arrangement and spend half the school holidays with each parent; and
(b)this paragraph shall take precedence ahead of paragraph (2) of this order.
That both parties shall be permitted to communicate with the child during those periods when the child is not living with them. This includes communication by telephone, letter, email, webcam and any other electronic means, in particular:
(a)the father shall ensure that the child telephone the mother on the mother’s birthday (being 29 November);
(b)the father shall ensure that the child telephone the mother on Mother’s Day each year – both Mother’s Day as celebrated in Australia and Mother’s Day as celebrated in England;
(c)the mother shall ensure that the child telephone the father on the father’s birthday (being 29 June);
(d)the mother shall ensure that the child telephone the father on Father’s Day each year – being Father’s Day as celebrated in Australia and Father’s Day when celebrated in England;
(e)the party who has the child in their care on the child’s birthday (being 18 September) shall facilitate the child communicating with the other party by telephone.
When the child is spending time in England with the mother, the mother is not to travel with the child outside of the United Kingdom unless she provides to the father:
(a)at least 14 days prior written notice of the intended travel;
(b)a copy of the itinerary of the confirmed trip;
(c)contact details for the child during her travels.
That the father shall be permitted to travel with the child out of the Commonwealth of Australia provided he provides the mother with:
(a)at least 14 days prior written notice of the intended travel;
(b)a copy of the itinerary of the confirmed trip;
(c)contact details for the child during her travels.
That all of the child’s passports shall remain with the father save for the periods of time that the child spends with the mother outside of Australia.
That in the event that either party insists that an adult accompany the child on international flights, then the party insisting upon such a process shall pay for the costs of the accompanying adult.
That at the end of each school term the father shall send copies of the child’s school reports, school photographs (and other appropriate photographs) as well as certificates and awards obtained by the child at the father’s expense to the mother.
That the parents authorise by this order the schools attended by the child to give to the mother all information concerning the child’s educational progress and other school related activities and supply to the mother copies of school reports, photographs, certificates and awards obtained by the child at the mother’s expense.
That these Orders and the accompanying Reasons for Judgment shall be published at the same time by delivering a copy of both to the parties (or their legal representatives as the case may be) by email.
IT IS NOTED:
Pursuant to section 65DA(2) of the Family Law Act1975 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.
IT IS NOTED that publication of this judgment under the pseudonym Harbin & Harbin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 6276 OF 2007
| MR HARBIN |
Applicant
And
| MS HARBIN |
Respondent
REASONS FOR JUDGMENT
Background
The applicant father is Mr Harbin, born in 1973 (hereinafter referred to as “the father”). Mr Harbin was born in England.
The respondent mother is Ms Harbin, who was born in England in 1965.
The father and his family migrated to Australia in about 1985.
The parties met in England in June 1998. In September 1998 the mother arrived in Australia and the parties began cohabitation.
In May 1999 the parties were married at [omitted] on the Gold Coast, Australia.
The child, [X] was born in Australia [in] 2000.
The parties separated on 3 September 2003. The parties were divorced in April 2005.
The parties could not agree on parenting orders. The matter went to trial. On 30 January 2006 His Honour Federal Magistrate Slack delivered judgment. The orders were to the effect that the child live with the mother in Australia and spend each alternate weekend and one half of the school holidays with the father. The mother had wanted to relocate with the child to England.
Within approximately one week of the handing down of the judgment by His Honour Federal Magistrate Slack the mother had departed Australia to live in England, leaving the child in Australia to live with the father.
Since that time the child has lived in Australia with the father. The child has spent time with the mother on the occasions when the mother has been present in Australia and the child has made two visits to England to spend time with the mother.
Before any final parenting order can be varied, a court must be satisfied that there has been a change in circumstances significant enough to justify the variation – Rice v Asplund [1979] FLC 78,904. Clearly there has been a significant change in circumstances in this case. The earlier final orders made by His Honour Federal Magistrate Slack on 30 January 2006 contemplated a situation whereby the mother and the father would both be living on the Gold Coast. The mother has, of course, since the making of those orders returned to live in England.
The Competing Proposals
The mother proposes that the child relocates and lives with the mother in England. The father would then spend time with the child during holiday periods.
The father’s proposal is that the child remain living in Australia with him and spend time with the mother during holiday periods.
I do not intend dealing with each proposal separately. The pros and cons of the parents’ competing proposals will be dealt with together in these Reasons for Judgment.
Equal Shared Parental Responsibility
There is no reason in this case why the presumption of equal shared parental responsibility stated in section 61DA of the Family Law Act 1975 should not apply. That section states:
“61DA(1) Presumption of equal shared parental responsibility. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Having determined that it is appropriate for there to be an order for equal shared parental responsibility, the Court is required to consider section 65DAA of the Act and the matters contained therein. Section 65DAA states that if a parenting order is to provide that a child’s parents are to have equal shared parental responsibility for the child, the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. The Court must also consider whether the child spending equal time with each of the parents is reasonably practicable.
Having considered the evidence in this matter (including the evidence of the father, the mother and the evidence of the family report writer, Ms Denise Britton) I consider that it would be in the best interests of the child for the child to spend equal time with each of the parents.
Unfortunately, in this case, it would not be reasonably practical. The mother will be living in England and the father will be living in Australia.
Pursuant to section 65DAA(2) of the Act, the Court is also required to consider an order allowing for the child to spend substantial and significant time with each parent. The term “substantial and significant time” is stated to mean as follows:
“65DAA(3) Substantial and significant time. For the purposes of sub-section(2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
In my view it is in this child’s best interests for there to be an order that the child spends substantial and significant time with each of the parents.
However, having regard to the fact that the mother will be living in England and the father will be living in Australia, I do not consider that it is reasonably practicable to frame an order that will allow each of the matters referred to in section 65DAA(3) of the Act to be met.
In those circumstances, I do not consider that it is appropriate to make an order that the child spend substantial and significant time with the non-resident parent.
Best Interests of the Child
This case must be determined having regard to the best interests of the child.
Section 60CA of the Act states:
“60CA 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.”
In section 60CC of the Act the legislature has set out how a court is to determine what is in a child’s best interests. The primary considerations are stated as follows:
“60CC(2) Primary Considerations. 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.”
There can be no doubt of the benefits to the child in this case of having a meaningful relationship with both of the child’s parents.
The court is then required to consider the so-called additional considerations set forth in section 60CC(3) of the Act.
Section 60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The parties and the child were interviewed by the family report writer Denise Britton. Ms Britton’s report is dated 12 June 2008 and is exhibit 3. In Ms Britton’s report, at paragraph 10 she refers to the interview which she conducted with the child. I have had regard to the entirety of paragraph 10 of Ms Britton. In particular I note the following:
“10.7 What she reckoned was that she liked the idea of going over to live with Mum. She then said that she was having Subway with her mother after she finished talking to me.
10.8 She also said she liked her Dad’s idea that she should stay in Australia. She didn’t want to have to choose. She liked going to [N]’s place and she stayed there in a bunk bed sometimes.
10.9 What she thought she liked best about Australia was going for a sleepover at a friend’s house (and she gave me a few names).
10.10 The things she would like to see in England was snow. She would like the chance to see it and then there was also “my brother and sister or step…not exactly brother and sister”. There was nothing she didn’t like about England.
10.11 In Australia there was nothing she didn’t like apart from the spiders and snakes – except there was “sometimes glass everywhere” and she didn’t like beaches. She liked pools better. She did go in the surf with Dad sometimes, but only if there were “no big waves”.
10.12 If she could wave a magic wand and wish for three wishes, she would wish that she could “Be like all the other kids and have Mum and Dad nearby – somewhere around England”. Dad could stay somewhere with a friend and she could “stay at my Mum’s house and we could change-over every five days”.
10.13 England would be better than here, as there was building going on over there and she was going to have one quarter of it. It would then be called [omitted] instead of [omitted] (a play on the current address).
10.14 When she got on the plane to go over to the UK, she agreed it was exciting. She liked going on her own as she got to go to a special bit with the other kids when they landed. However, she didn’t like the fact that she had to sit near “someone annoying”. She had Nanny with her one time and that was better.
10.15 She had no complaints about how her Dad looked after her or how her Mother looked after her. She was looking forward to going off with her Mother after the interview.”
The child is currently 7 years old. It is not surprising that she told
Ms Britton “She didn’t want to have to choose”.
Having regard to the child’s young age and the fact that she specifically stated that she liked the idea of living in England with her mother and she liked the idea of living in Australia with her father – leads me to the conclusion that I cannot place any weight upon her stated wishes.
Section 60CC(3)(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons ( including any grandparent or other relative of the child).
I find that [X] has a close and loving relationship with both of her parents.
Furthermore, I find that [X] has a good relationship with the partners of her parents. I find that [X] has a good relationship with her father’s extended family and also a good relationship with her mother’s extended family.
60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The child has a close and loving relationship with the mother even though the child lives in Australia and the mother lives in England. Ms Britton stated that she believes that the father does encourage the child’s relationship with the mother. Ms Britton also gave evidence to the effect that the fact that the child does have such a good relationship with her mother (even though the mother lives on the other side of the world) has to be attributed (at least in part) to the father’s parenting.
I accept this evidence of Ms Britton. I find that the father is willing and able to facilitate and encourage a close and continuing relationship between the child and the mother.
I note that Ms Britton stated in her report dated 12 June 2008:
“13.2.6 In short, I have no concerns about either parent’s capacity to care for [X] appropriately. I do have some concerns about the mother’s capacity to facilitate the father’s relationship with [X] and I base this on her past actions in removing [X] from Australia (although she claims he knew she was leaving permanently at that time), the view taken of her by FM Slack and detailed in his Reasons for Judgment dated January 2006, and her decision so soon after the handing down of the decision in January 2006 to relocate to the UK and leave [X] with her father in Australia.
13.2.7 The mother claims she needs to be in the UK for health reasons as she cannot cope with the stress of being in Australia and yet her claimed improvement in health has occurred despite being separated from her daughter. It is difficult to understand how anything could be more stressful for a mother than being separated from such a young child and this suggests that, apart from any other significant factor, the mother had faith in the father to care for [X] appropriately in her absence.”
The mother’s decision to remain living in England whilst the child has remained living in Australia was not, in my view, a decision which was “child-focussed”.
The mother has her own reasons for remaining in England.
If the child was to be living in England with the mother, I am not convinced that the mother would be able to facilitate and encourage a close and continuing relationship between the child and the father. Much of the mother’s evidence at this hearing was focussed on criticising the father’s parenting. This is unfortunate, especially in circumstances where the objective expert evidence of Ms Britton (which I accept) is to the effect that the child is “an intelligent and socially competent 7 and a half year old who is thriving in Australia in the care of her father” (Note paragraph 13.2.1 of Ms Britton’s report dated 12 June 2008).
60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person ( including any grandparent or other relative of the child) with whom he or she has been living
Whatever decision is made in this case the child is going to be separated from one of her parents. The father lives in Australia and has no intention of moving to England. The mother lives in England and has no intention of moving back to Australia.
As Ms Britton states in paragraph 13.2.8 of her report dated 12 June 2008:
“ … my opinion is that [X] is thriving well in Australia, is being well nurtured by her father and his partner as well as her mother when she spends time with her ( in person, via webcam and via the telephone). Upsetting the current arrangements could cause either a negative or a positive impact for [X]. There is a risk that it would be the former and this would largely depend on the genuineness of the mother to facilitate the father’s relationship with [X] as well as the father’s capacity to adapt.
…
13.2.9 Erring on the side of caution, I believe that [X] should continue to live with her father and that her time with her mother should be maximised.”
I accept this evidence of Ms Britton. I agree with her conclusion that the best approach is to err on the side of caution and order that [X] should continue to remain living in Australia with her father whilst still maximising the time [X] spends with her mother.
60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
With the child living in one country and (at least) one parent living on the other side of the world – there is obviously going to be practical difficulties and expenses involved for the child to spend time with the non-resident parent.
As to the question of communication, it is encouraging to note the regular webcam communication between the child and the mother that has been occurring. It is also encouraging to note the regular telephone contact that has been occurring.
60CC(3)(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person ( including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
I find that both of the child’s parents are able to provide for the needs of the child, including the child’s emotional and intellectual needs.
60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I find that both parents have an excellent attitude to the child. I have already found that both parents have a close and loving relationship with the child.
As to the responsibilities of parenthood I find that the father has demonstrated, by his actions, that he fully accepts the responsibilities of parenthood.
I find that the mother has a desire to be a responsible parent. However, the mother’s actions (remaining to live in England whilst the child has been living in Australia) do not, in my view, demonstrate that she has fully accepted the responsibilities of parenthood. Having considered the mother’s affidavit evidence as well as having listened to her give evidence in the witness box, I find (as noted earlier) that the mother has not been “child-focussed” in her decision to remain living in England.
At the conclusion of the trial that was conducted before His Honour Federal Magistrate Slack (Judgment delivered 30 January 2006),
His Honour ordered that the child was to live in Australia with the mother. I consider that, if the mother had fully accepted the responsibilities of parenthood, that she would have remained living in Australia from that time onwards.
The mother refers to her health issues as being one of the primary reasons why she cannot live in Australia. The mother also refers to the fact that she has no family support in Australia.
I do not accept the mother’s argument that there are not appropriately qualified doctors in Australia able to manage her health issues. The mother has not adduced medical evidence which would convince me that her health issues cannot be adequately treated in Australia.
The mother has decided that her own desire to live in England has outweighed her desire to live near her daughter.
The mother is now seeking an order from the court which will enable the child to live with her in England. This does not explain the mother’s actions in staying in England since 2006 whilst her daughter has remained living in Australia. It is apposite at this point to note the following comments of the majority Justices of the High Court of Australia in U & U (2002) 211 CLR 238 at page 263 per Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed):-
“The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”
I find that the mother has not, as yet, fully accepted the responsibilities of parenthood.
60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In this case I do not consider that there is any particular order “That would be least likely to lead to the institution of further proceedings in relation to the child”. I do not propose to consider this aspect any further.
60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
I find that the father has provided parenting to the child of such a high standard that the child is thriving in Australia in his care. I accept the evidence of Ms Britton in this regard.
I find that the father’s parenting has been of such a high standard that, notwithstanding that the mother lives in England and the child lives in Australia, the mother and the child maintain a close and loving relationship.
As already noted, I accept the evidence of Ms Britton that it is in [X]’s best interests for her to continue to live with her father.
I note and accept the following evidence from Ms Britton:
“13.3.1 Unless the parents can agree to live in the same country – close enough to facilitate a more equitable shared care arrangement – then [X] should live with her father.”
Ms Britton noted that the child’s [omitted] Primary School reports for semesters 1 and 2 of 2007 indicate that the child’s performance was at least sound in most areas and very high in English. The child’s effort was assessed as mostly satisfactory or very good.
I note that the father does suffer from a condition known as Dysthymia. The father stated that he takes anti-depressant medication for this condition. I accept that the father’s health condition is under control.
I have considered the evidence in this matter so far as it relates to the question of finances. I find that the father has not led an extravagant lifestyle. I note that the father earned approximately $68,000 gross in the financial year ended 30 June 2007. I accept his evidence that he will earn a similar income in the financial year ended 30 June 2008. The father works as a teacher at a school in south-east Queensland.
The mother earns approximately 32,000 pounds working as a secretary for an accountant’s firm in London, England.
I note that neither party could be said to be wealthy.
I note that the father has been lucky enough to receive some benefits from his brother (by means of the use of Frequent Flyer points and some relatively minor cash payments for holiday purposes).
Conclusion
For the reasons stated I conclude that it is in the child’s best interests to remain living in Australia with the father.
If the mother decided to return to live permanently in Australia, I consider it appropriate that there be a week-about shared care arrangement between the parents provided the mother was also living on the Gold Coast, Queensland. The father indicated that he would agree to such an order. If that occurred the child should spend half of the school holidays with each parent.
I do not consider it appropriate to make an order in 2008 (noting that the child will turn 8 years old in September 2008) that would require the child to move residence to live overseas with the mother at some stage in the future. This was one option canvassed by Ms Britton. I do not consider it appropriate to make an order so far into the future. In my view the child needs stability and certainty.
These parents seem determined to live on opposite sides of the world. The child is going to have to travel in order to spend time with the mother in England. In the event that the father insists that the child be accompanied on trips to England, I consider that the father will have to pay for the accompanying person. I do not consider it necessary to make an order to require the child to travel with an accompanying person.
Ms Britton has recommended that the child remain living in Australia, but that there ought to be an order to maximise the mother’s time spent with the child. I accept her recommendation in that regard. I consider that it will be in the best interests of this child to spend the majority of each Christmas (December/January) school holidays every year with her mother in England. This will essentially mean the child is spending up to approximately four to six weeks uninterrupted each year with the mother in England.
I find that whilst the father does not lead an extravagant lifestyle and is not a wealthy man, he nonetheless does have the ability to contribute to the cost of the child’s international airfares. I consider that it is in the best interests of the child for the father and the mother to equally share the cost of [X]’s return international airfare from Australia to England each Christmas school holidays.
I note that the proposed order will mean that the child does not spend Christmas with the father in any year.
However, if the father chooses to travel to England in alternate years, I will make an order that he can spend Christmas Day with the child in England in alternate years.
I consider it will be in the child’s best interests to allow the mother liberal contact with the child in the event that the mother is able to travel to Australia.
I have had regard to the father’s proposal in respect of the contact regime in the event that the child remains living in Australia with the father. I note that the court is not bound to accept the proposals of the parties (U & U (supra)). In my view the orders I have included at the front of these Reasons are in the best interests of the child
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Howard FM
Associate: J Witenden
Date: 27 August 2008
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