Hartley and Ricci
[2009] FMCAfam 1012
•22 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARTLEY & RICCI | [2009] FMCAfam 1012 |
| FAMILY LAW – Parenting orders – mother and child relocated from London to Melbourne – father now seeks an increase in time and more time in Europe. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| P & P (2006) FMCAfam 518 |
| Applicant: | MR HARTLEY |
| Respondent: | MS RICCI |
| File Number: | MLC 10932 of 2008 |
| Judgment of: | Riley FM |
| Hearing dates: | 24 April & 26 June 2009 |
| Date of Last Submission: | 6 October 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 22 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Graeme W Jackson |
| Solicitors for the Applicant: | Kennedy Wisewoulds |
| Counsel for the Respondent: | Minal Vohra |
| Solicitors for the Respondent: | Marshalls & Dents |
ORDERS
The orders made by the Family Court of Australia on 24 August 2005 be discharged.
The father and mother have equal shared parental responsibility for [X] born [in] 2002 (“[X]”).
[X] live with her mother.
The mother give the father 21 days written notice of any change of [X]’s address.
[X] spend time with her father as follows:
(a)in the European Union from the first Monday after the conclusion of second term each year to the third Monday after the conclusion of second term each year, with changeover at Heathrow Airport or such other place as may be agreed;
(b)in Melbourne from seven days before the conclusion of school term 4 in 2009 until the conclusion of school term 4 in 2009 and each alternate year thereafter, with changeover at [X]'s school, or, if the father will not be remaining in Melbourne immediately after changeover, at Melbourne Airport;
(c)in the European Union from one day after the conclusion of school term in 2009 for 21 days, and from one day after the conclusion of school term in 2011 and each alternate year thereafter for 28 days, with changeover at [X]'s home, or, if the father will not be remaining in Melbourne immediately after changeover, at Melbourne Airport;
(d)in the European Union from 25 days before the commencement of school term in 2011 until 4 days before the commencement of school term in 2011, and from 32 days before the commencement of school term in 2013 until four days before the commencement of school term in 2013 and each alternate year thereafter with changeover at [X]'s home, or, if the father will not be remaining in Melbourne immediately after changeover, at Melbourne Airport;
(e)in Melbourne, from two days before the commencement of school term in 2011 to five days after the commencement of school term in 2011 and each alternate year thereafter, with changeover at [X]’s home, or, if the father will not be remaining in Melbourne immediately after changeover, at Melbourne Airport;
(f)at such further or other times as [X]’s parents may agree;
provided that:
(g)if the father does not comply with order 5(b) or order 5(e) hereof on any occasion, the time mentioned in order 5(c) or 5(d) hereof on the next occasion shall take place in Australia.
The mother or her nominee accompany [X] between Melbourne and Heathrow Airport and back in June and July each year until [X] is 13 years old unless her parents agree before that time that she may travel unaccompanied.
The father or his nominee accompany [X] between Melbourne and Europe and back each December and January until [X] is 13 years old unless her parents agree before that time that she may travel unaccompanied.
The mother is to choose the carrier for [X]'s travel in June and July each year.
The father is to choose the carrier for [X]'s travel in December and January each year.
The mother is to pay the airfares of herself or her nominee to accompany [X] in June and July each year.
The father is to pay the airfares of himself or his nominee to accompany [X] in December and January each year.
Twenty-eight days prior to [X]'s travel in June and July each year, the mother is to provide to the father a written statement from the relevant carrier of the cost of an economy fare for [X] on the flights on which she is booked and the father is to pay to the mother half of the cost of that fare 21 days prior to [X]'s travel.
Twenty-eight days prior to [X]'s travel in December and January each year, the father is to provide to the mother a written statement from the relevant carrier of the cost of an economy fare for [X] on the flights on which she is booked and the mother is to pay the father half of the cost of that fare 21 days prior to [X]'s travel.
The mother pay the father the cost of his return economy flight to and from Melbourne for the purpose of him accompanying [X] in July 2009 to Europe and half of the cost of [X]'s flight to and from Europe in June and July 2009, with such costs to be offset against the child support owing by the father to the mother.
When [X] is with her father in Europe:
(a)the father provide the mother with contact details and the addresses at which [X] will be staying at least 7 days prior to the commencement [X]’s time with him; and
(b)[X] have telephone communication with her mother each Wednesday and Saturday at 9.00 am in the place where [X] is staying with the mother to telephone the father’s mobile telephone number and the father to facilitate [X] taking the call, or as otherwise agreed.
The mother forthwith arrange for the installation at her home of Skype/telephone/webcam and provide the relevant account details to the father and keep him informed of any changes to such details.
[X] communicate with her father each Sunday at 6.00 pm Melbourne time by Skype/telephone/webcam with:
(a)the father to place the call and the mother to facilitate the call;
(b)the mother to be restrained from being present during the duration of the telephone and Skype discussions between the [X] and the father.
Until further order, each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X] or any of them, and from permitting any other person so to do.
IT IS NOTED that publication of this judgment under the pseudonym Hartley & Ricci is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10932 of 2008
| MR HARTLEY |
Applicant
And
| MS RICCI |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of [X] born [in] 2002. Final orders in respect of [X] were made in London by consent on 10 March 2005. Orders in substantially the same terms were made by consent in the Family Court of Australia on 24 August 2005. The father is now seeking to vary those orders. The mother did not submit that there was a Rice and Asplund point in this case. Indeed, the mother also wishes to vary the orders. In any event, I consider that it is appropriate for the court to re-examine this matter given that the original orders were made when [X] was only three years old and she is now seven years old.
[X]'s parents were married [in] 2001 in London. [X]'s father is a British citizen and [X]'s mother is Australian. They lived together in London from the time of their marriage until the father took up a position [ in Germany on 5 August 2002. The mother and [X] joined the father in Germany on 15 September 2002 when [X] was about eight months old.
On 5 February 2003, the mother and [X] travelled to Australia with the father's consent to visit family and friends. On 2 March 2003, the mother told the father that she was delaying her return to Germany for a couple of weeks. Later in March 2003, the father commenced proceedings in Germany under the Hague Convention. The mother contested those proceedings. On 24 July 2003, orders were made for the immediate return of [X] to Germany.
The mother returned to Germany with [X] in late August 2003. The mother issued proceedings in Germany seeking sole parental responsibility for [X]. The mother gave evidence that she intended to reside permanently in London with [X]. In early October 2003, a German court made orders permitting the mother to move freely within the European Union with [X] and providing for [X] to have daytime contact with her father. The mother and [X] then returned to London to live and the father remained in Germany.
On 30 December 2004, the mother filed an application in an English court seeking permission to relocate with [X] to Australia.
On 10 March 2005, orders were made by consent by an English court whereby:
a)the mother was permitted to relocate with [X] to Australia after 1 September 2005;
b)[X] was to spend certain times with her father in January 2006;
c)[X] was to spend with her father two weeks in the European Union during each June and July and one week in Australia in each December and January on dates to be agreed no later than three months in advance;
d)[X]'s mother and father were to each pay one half of [X]'s economy airfare to travel to and from London;
e)while [X] was too young to travel as an unaccompanied minor, the mother was to travel with [X] at the mother's own expense or arrange for someone else to accompany [X];
f)if [X] were to be in the European Union or if the father were to be in Australia, the mother and father were to endeavour to agree arrangements whereby [X] might spend time with her father;
g)[X] was to have reasonable telephone contact with her father.
The orders were made on the basis of mutual non-denigration undertakings. Orders in the same terms were made by consent in the Family Court of Australia on 24 August 2005.
Since relocating to Australia, [X] has spent time with her father as follows:
a)
in January 2006, in the United Kingdom, on 9 and 10 January from 10.00 am until 6.00 pm, and from 11 January to
15 January, being seven days in total;
b)in June and July 2006, in the European Union, on 22 June 2006 from 10.00 am until 6.00 pm and then from 23 June to 4 July being 12 days in total;
c)in January 2007, in Melbourne, for four days, or one week, depending on whose evidence is accepted;
d)in June and July 2007, in the European Union, for two weeks;
e)in January 2008, in Melbourne, for three days, or for one week, depending on whose evidence is accepted;
f)in June and July 2008, in the European Union, for two weeks;
g)in January 2009, in Melbourne, no time;
h)in June and July 2009, in the European Union, two weeks.
For the purpose of [X]’s time with her father in June and July in 2006 to 2008, the mother has taken [X] to London via Dubai. They have travelled business class, with a stopover in Dubai to break up the trip. The mother has remained in the United Kingdom while [X] was spending time with her father.
The father gave unchallenged evidence in his affidavit sworn on
28 November 2008 that when [X] arrived in London for the mid year holiday, she would spend a few days with him in his flat in London, then a couple of days with her father and paternal grandmother at the paternal grandmother's house in [B], England, and then a week in France with her father and her paternal grandmother in a house owned by the paternal grandmother.
The mother is qualified [in the Design Industry], but is not presently working. Her father assists her financially. The mother and [X] live in an apartment in [S], Melbourne. [X] attends [M] School. The father is [employed in the Financial Industry] and by most standards is extremely well paid.
The mother is pregnant with her second child. The baby is due in September 2009. The father of the baby is an old friend of the mother’s. They have no immediate intention to cohabit. The mother is unsure about how involved the father of the baby will be once she is born.
The mother considered that she was unable to travel to England with [X] in June and July 2009. As a result, the father took [X] back to England with him for two weeks after the conclusion of the hearing on 26 June 2009.
Because the hearing was not contained within the estimated and allocated time, the parties filed written closing submissions. The mother’s written submission included an addendum that concerned events that occurred after the cases of both parties had been closed. The mother’s written submission acknowledged that the matters included in the addendum required further evidence to be given to the court and foreshadowed an application in that regard. The father’s written submission noted the lack of evidentiary support for the addendum to the mother’s submission but responded to it also without an evidentiary basis.
Neither party sought leave to reopen his or her case. In the circumstances, there is no proper foundation for the submissions contained in the mother’s addendum or the father’s response to it. Accordingly, in determining [X]’s best interests, the court disregards the matters contained in the addendum and the response to it. The court foreshadowed this outcome in a letter to the solicitors for the parties dated 18 September 2009. However, no application to reopen the case of either party has been filed.
The proposals of the parents
The father filed an application in this court on 3 December 2008 seeking orders, among other things, that:
a)[X]'s time with him during December and January be gradually increased to four weeks, and be spent in the European Union;
b)[X] continue to spend two weeks with her father in the European Union during June and July; and
c)[X] travel between Melbourne and London as an unaccompanied minor once she attains the age of eight years.
The mother filed a response on 19 February 2009 in which she sought orders, among other things, that:
a)[X]’s time with her father in December and January continue to take place in Australia but be increased to three weeks;
b)the father be responsible for the full cost of [X]'s travel to London;
c)[X] travel as an unaccompanied minor after she attains the age of 13 years.
In their closing submissions, both parties had somewhat refined their proposals which ultimately were as follows.
a. discharge of previous orders
The father sought the discharge only of paragraph 3 of the orders made by consent in the Family Court of Australia at Melbourne on
24 August 2005, which concerned the time to be spent by [X] with her father. The mother sought the discharge of all of the orders made on 24 August 2005, with new orders for equal shared parental responsibility and for [X] to live with the mother. The net effect of both proposals is substantially the same, except that the mother’s proposal would use the current language for parental responsibility and with whom [X] is to live. However, the old orders also required the mother to keep the father informed well in advance of any proposed change of the address at which [X] will live.
b. June and July 2010 and subsequent years
The father sought orders that in June and July in 2010 and in subsequent years, [X] spend two weeks with him in the European Union at such times as may be agreed between the parties, but in default of agreement commencing in London on the first Sunday following the conclusion of [X]’s school term. The mother sought the same order except that the time commence on the first Monday following the conclusion of [X]’s school term.
c. 2009/2010 long school holidays
The father sought orders that [X] spend time with him in the 2009/2010 in the long school holidays for three weeks in the European Union on dates to be agreed, but in default of agreement, commencing in London on 28 December 2009. The mother sought the same order, except that the time be spent in Australia and commence at 9 am on 28 December 2009.
d. 2010/2011 long school holidays and subsequent years
The father sought orders that [X] spend time with him in the 2010/2011 long school holidays for four weeks in the European Union on dates to be agreed, but in default of agreement commencing:
a)in London on the first Sunday following the conclusion of the child’s school year in 2010 and in alternate years thereafter; and
b)in London, on 28 December 2011 and in alternate years thereafter.
The mother proposed that the time [X] spends with her father in the 2010/2011 long school holidays and in subsequent years be three weeks rather than four, the time be spent in Australia rather than the European Union and the time commence at 3pm on 25 December 2010 and each alternate year thereafter, and commence at 9.00 am on 28 December 2009 and each alternate year thereafter.
e. time in Australia
The father proposed that [X] spend time with him in Australia, at least once per annum, at any reasonable time upon the father providing the mother with not less than 28 days written notice of his intention to exercise such time (preferably during the child’s school term). The mother proposed a catchall of [X] spending any further time with her father as agreed, but otherwise proposed that [X] continue to spend time with her father in Australia over the Australian summer.
f. electronic communication
The father proposed that [X] communicate with him as follows:
a)by telephone at all reasonable times:
i)with the father permitted to telephone the mother’s mobile telephone or landline for the purpose of communicating with the child;
ii)with the mother to permit [X] to telephone the father in accordance with the child’s wishes; and
iii)to facilitate such communication, the mother forthwith provide the father with her current contact telephone numbers and keep him informed of any changes to same;
b)by videolink via Skype/telephone/webcam at all reasonable times with the mother to arrange for the installation of Skype/telephone/webcam and to provide the relevant account details to the father forthwith and keep him informed of any changes to such details; and
c)that the mother be restrained from being present during the duration of the telephone and Skype discussions between the [X] and the father.
The mother proposed that [X] communicate with her father by telephone and/or Skype each Sunday at 9.00am Melbourne time with the husband to initiate such communication.
g. accompanied and unaccompanied travel
The father proposed that:
a)from 2009 to 2013, when [X] will be 11 years old:
i)the mother, or a person nominated by the mother, accompany [X] on the flight from Melbourne to an agreed stopover destination;
ii)the father, or a person nominated by the father, collect [X] from the mother or her nominated agent at the agreed stopover destination and accompany [X] to London;
iii)the father, or a person nominated by the father, accompany [X] on the flight from London to the agreed stopover destination at the conclusion of the father’s time with [X]; and
iv)the mother, or a person nominated by the mother, collect [X] from the father, or his nominated agent at the agreed stopover destination and accompany [X] to Melbourne;
b)for 2014, when [X] will be 12 years old:
i)the mother or her agent accompany [X] on the flight from Melbourne to an agreed stopover destination;
ii)[X] travel as an unaccompanied minor from the agreed stopover destination to London, the father collecting [X] from the airport upon her arrival in London;
iii)at the conclusion of the father’s time, the father, or his agent, accompany [X] on the flight from London to the agreed stopover destination;
iv)[X] travel as an unaccompanied minor from the agreed stopover destination to Melbourne, with the mother to collect [X] from the airport upon her arrival in Melbourne.
c)from 2015 onwards, when [X] will be 13 years old, [X] travel as an unaccompanied minor for all travel between Melbourne and London, and London and Melbourne.
The mother proposed that [X] travel unaccompanied to and from the European Union once she attains the age of 13 years.
h. the cost of travel
The father proposed that:
a)until 2013, the accompanying parent be solely liable for the cost of [X]’s travel to and from an agreed stopover destination, which, in default of agreement, would be Singapore;
b)for 2014, the mother be solely responsible for [X]’s trip to London and the father be solely responsible for [X]’s trip back to Melbourne; and
c)for 2015 and following, the parents pay one half of the cost of a non-flexible, economy, unaccompanied airfare for [X].
The mother proposed that:
a)
the father be responsible for the full cost of [X]’s return economy airfares to and from London on a carrier chosen by the mother and the father pay the cost directly to the travel agent
30 days before the scheduled departure;
b)the mother be responsible for her own airfares to accompany [X].
the choice of airline
The father proposed that the choice of airline be limited to
British Airways/QANTAS, Singapore Airlines, and Emirates, and in default of agreement the carrier should be British Airways/QANTAS. The wife proposed that she be permitted to choose the airline.
j. travel costs for June/July 2009
The father proposed that, within 30 days, the mother pay to the father:
a)one-half of [X]’s travel costs; and
b)the father’s travel costs;
for the time [X] spent with her father in June/July 2009.
k. substantial attendance
The mother sought orders that the father be in substantial attendance at all times that [X] was in the European Union with him. The father did not specifically address this proposal.
l. contacts in Europe
The mother sought orders that, when [X] was to be with her father in Europe:
a)the father provide the mother with contact details and addresses as to where [X] will be staying at least 7 days prior to the commencement of his time; and
b)the mother have telephone communication with [X] each Wednesday and Saturday with the mother to telephone the father’s mobile telephone number and the father to facilitate [X] taking the call.
The father did not specifically address this proposal.
m. costs of the proceeding
Each party sought orders that the other party pay their costs of the proceeding.
The family report
A family report was prepared in this matter by Terry Laidler. The report is dated 18 March 2009. It was prepared without the knowledge that the mother was pregnant with her second child. It was also prepared before the parties’ proposals were refined as set out above.
The father told Mr Laidler that the existing orders were made when [X] was a toddler and they were no longer right for her. The father told Mr Laidler that he did not want to have to go to Australia every Christmas and would like to do things with [X] in the European Union at Christmas time. The father also told Mr Laidler that there needed to be a gradual progression towards [X] travelling on her own.
The mother told Mr Laidler that she was happy for [X] to spend more time with her father as long as the time was spent in Australia. The mother considered that [X] should not travel unaccompanied until she is about 13 years old.
Mr Laidler found [X] to be a friendly and articulate child who had her primary attachment to her mother. [X] told Mr Laidler that it would be alright to spend time with her father at Christmas but she liked to have Christmas with her mother and be home before her birthday on 22 January. [X] thought that it was better when her father came to Australia because she can show him things such as her school and where she plays. [X] also said she did not want to go to her father for “enormous times over there” and she did not want to have “all the stress and getting packed”.
[X] also wanted to keep flying with her mother but thought she could go on her own when she was grown up. Mr Laidler suggested to [X] that as she gets older she might share her birthday and Christmas with her parents by having Christmas with her mother and her birthday with her father in one year and the other way round in the following year. [X] thought that would be alright because “it's fair”. Mr Laidler considered that [X] and her father have a “robust father-daughter bond”.
Mr Laidler recommended as follows:
7.7 In my view, there does need to be some progress towards [X] being able to visit her father independently, and so my suggestion is that:
In Jun/Jul 2009
[X] travel with her mother to London and spend 2 weeks with her father.
After Christmas Day 2009 and before 22 January 2010
[X] travel accompanied by a parent to London and stay for 2 weeks with her father. She return with her father to spend 1 week in Australia with her father.
In Jun/Jul 2010
[X] again travel with her mother to London and spend 2 weeks with her father.
After Christmas Day 2010 and before 22 January 2011
[X] travel accompanied by a parent to London and stay for 3 weeks with her father. She return with her father to spend 1 week in Australia with her father, including sharing time with both parents for her birthday.
In Jun/Jul 2011
[X] again travel with her mother to London and spend 2 weeks with her father.
In the Australian summer vacation 2011/2012
[X] travel accompanied by her mother to and from a midway point such as Singapore and then to and from London with her father. She stay for 4 weeks with her father and then return in time to spend her birthday with her mother.
In Jun/Jul 2012
[X] again travel with her mother to London and spend 2 weeks with her father.
In the Australian summer vacation 2012/2013
[X] travel after Christmas Day as an unaccompanied minor on the first leg of a 2-leg journey to London to be met by her father and to return with him to the same destination. She stay for 4 weeks, including her birthday, with her father.
In Jun/Jul 2013
[X] again travel with her mother to London and spend 2 weeks with her father.
In the Australian summer vacation 2013/2014
[X] travel as an unaccompanied minor to and from London. She stay for 4 weeks with her father and then return in time to spend her birthday with her mother.
7.8 I suggest this pattern for [X] to spend 2 weeks in June/July and 4 weeks in the Australian summer vacation, alternating Christmas with one parent and her birthday with the other, should continue thereafter.
7.9 While I consider it important that both parents travel with [X] to participate in a process leading up to unaccompanied travel in the way I have suggested, I can see no reason why Ms Ricci should not be free to continue to travel at the same time at her expense if she chooses to do so.
7.10 I think that it would be equitable and conducive of good faith between the parties if the cost of establishing unaccompanied travel for [X] over the next 4 Australian long summer holidays were to be shared between her parents.
7.11 Attempts to establish Internet videoconferencing between [X] and her father for the purposes of this report were only partially successful due to a poor connection on a mobile broadband service I used. [X] seemed excited at the prospect of communicating with her father in this way, and responded to it well in the limited time we had. My recommendation is that her parents make it possible for her to have liberal, voluntary contact with her father in this way and that Ms Ricci undertake to encourage and facilitate this at least weekly.
Mr Laidler's oral evidence
Mr Laidler frankly conceded in oral evidence that some of his recommendations were not derived from his psychological expertise. However, he confirmed that [X] should be introduced to unaccompanied travel gradually. He said that she should be capable of unaccompanied travel by the time she was 13 or 14. However, Mr Laidler's report recommends that [X] travels unaccompanied on one leg of the trip between Melbourne and London in the summer vacation in 2012/2013 and recommends that [X] travels unaccompanied for the whole trip between Melbourne and London in the summer vacation in 2013/2014. In January 2013, [X] will be turn 11 and in January 2014 [X] will turn 12.
Mr Laidler continued to be of the view that [X] was able to deal with two international trips per year. Mr Laidler was unable to say from a psychological point of view whether it would be better for [X] to spend time in the European Union in summer or winter if it had to be one or the other.
Mr Laidler said that it was important that the father has an understanding of [X]'s life in Australia and meets the people who are a part of her life here.
Mr Laidler conceded that he knew nothing about the parties’ financial circumstances and was not an expert on the policies of any airlines on unaccompanied travel by children. Mr Laidler acknowledged that the trip to London involves a stopover somewhere and said that you would not want a child “on the ground unsupervised”. Mr Laidler said that if his child were travelling as an unaccompanied minor, he would want to know what the arrangements were at the stopover place for transit and what the arrangements would be in the event that the connecting flight was delayed or cancelled.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides 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.
However, the best interests of the child are not the only consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. Additionally, the court must consider the matters set out in subsections (4) and (4A). I will address those considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
There is no dispute that [X] would benefit from having a meaningful relationship with both of her parents. Of particular relevance in the present context are the words of Brown FM in P & P (2006) FMCAfam 518 at [258] where his Honour said:
The rationale of section 65DAA is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flows from them being exposed to their parents in a variety of settings. These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting; as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations. In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
It was not suggested that [X] has ever been subjected to or exposed to abuse, neglect or family violence, except that it was alleged that the father smacked her on one occasion. This matter is discussed below.
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
[X] told Mr Laidler that it was “better” when her father comes to Australia because she can “show him things” such as her school and where she plays. [X] said that she would prefer to keep flying with her mother but that she could go on her own when she is grown up. [X] evidently enjoyed communicating with her father by webcam. After Mr Laidler discussed the possibility with her, [X] thought that it would be “OK … because it’s fair” to spend Christmas with her mother and her birthday with her father in one year and the opposite the next year.
[X] is only seven years old. Normally, relatively little weight would be given to the views of such a young child. However, [X] spoke with a good deal of wisdom when she explained why she thought it was better for her father to come to Australia than for her to visit him in the European Union. By coming to Australia, [X] explained, the father could see her school and where she played.
Obviously, for the father to have a good understanding of [X], and hence for him to have a meaningful relationship with her, the father needs to know something about her life here in Australia. Ideally, as far as school is concerned, the father would meet [X]’s teacher for each year level at least once, he would receive school newsletters regularly, he would communicate with [X]’s teacher, perhaps by email, and he would at least occasionally attend parent teacher interviews, school concerts, school sports days and school fairs. The father would be familiar with the layout of [X]’s school and be familiar with the significant events in the school calendar.
As far as [X]’s extracurricular activities are concerned, ideally, the father would occasionally take her to her ballet and any other lessons she may have, meet her teachers, and be familiar with the venues of the extracurricular activities.
Similarly, ideally, the father would meet [X]’s close friends, and would perhaps meet their parents. The father ideally would sometimes have [X]’s friends over to play, or would take one or two of them out somewhere with him and [X]. I expect that [X] would be thrilled to introduce her father to her friends and “show him off”, so to speak.
All of these things would enable the father to participate much more fully in [X]’s life, and would enable them to communicate with each other, whether in person or by webcam, much more meaningfully.
It is true that there are practical difficulties in the father being part of [X]’s everyday life, and it is true that those difficulties have come about largely because the mother and [X] relocated to Australia to live. However, that is the reality of the situation. Dealing with it, in [X]’s best interests, requires the father to regularly spend some time with [X] in Australia, preferably during term time.
The father said in oral evidence that [X]'s “life here in Australia is her mother's life. That's not something I can be part of.”[1] That view is completely wrong. While the marital relationship between the mother and the father has ended, they are still both [X]'s parents. It is very much in [X]'s best interests that they both have an involvement in her day to day life. As mature adults, it is incumbent upon the mother and father to find a way of dealing with each other so that the father can have a sustainable, though perhaps only occasional, involvement in [X]'s everyday life.
[1] Transcript 24 April 2009, page 87, line 40
Accordingly, I consider that some weight should be given to [X]’s view that it is “better” that her father comes to Australia, not simply because it is [X]’s view, but because it is a sound view.
Having said that, for [X] to have a good understanding of her father, and to have a meaningful relationship with him, she needs to spend time with her father in his environment, participate in his activities and meet his friends. Accordingly, the court should give some weight, but not determinative weight, to [X]’s view that it is “better” when her father comes to Australia.
[X] accepted that it would be “fair” to alternate birthdays and Christmas with each parent. This approach also reflects Mr Laidler’s view. Alternating special occasions is generally perceived as a reasonable result that is often agreed to by parties before the court, and, failing that, is often ordered by the court. In the particular circumstances of this case, it would seem appropriate to give some weight to [X]’s views in this regard.
In relation to when [X] will be old enough to travel unaccompanied, Mr Laidler conceded that it was difficult enough for him to predict, much less for a seven year old child. I do not consider that any weight should be attached to [X]’s view of when she will be ready to travel unaccompanied. She has even less idea of how she might feel as an 11, 12 or 13 year old than Mr Laidler has. It is entirely natural that, for the time being, [X] would prefer to travel with her mother. However, other factors might outweigh that preference.
It is clear that there are considerable benefits to [X] and her relationship with her father in regular communication by webcam. [X]’s apparent wishes in that regard should be given considerable weight.
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)
There is no question that [X] has her primary bond with her mother. However, it also appears that [X] has a good bond with her father. [X] seems to have a particularly good relationship with her maternal grandparents, although sadly the maternal grandmother is gravely ill. [X] apparently has a good relationship with her paternal grandmother and a paternal uncle. The paternal grandmother has travelled to Australia to spend time with [X] once. The father does not speak to the paternal grandfather. However, the paternal grandfather travelled to Australia to spend time with [X] in January 2009. [X] has also spent time with him in England, as the mother continues to have a good relationship with him. All in all, it appears that [X] has a good relationship with all of her relatives, both in Australia and in England.
Section 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 fact that the father eventually consented to orders permitting the mother and [X] to relocate to Australia demonstrates that he is both willing and able to facilitate and encourage a close and continuing relationship between [X] and her mother. However, the father alleges that the mother is not willing and able to facilitate and encourage a close and continuing relationship between [X] and him. The mother counters that the father is self-centred and profoundly lacking in insight into [X]’s emotional needs.
The mother, shortly after separation, did not demonstrate a willingness or ability to facilitate and encourage a close and continuing relationship between [X] and her father. The mother remained in Australia after ostensibly coming here for a visit. The father was obliged to bring proceedings under the Hague Convention, which the mother contested. Eventually, the father obtained orders forcing the mother to return from Australia to Germany with [X].
The mother later sought orders enabling her to live in London with [X] while the father continued to live in Germany. It seems that the mother's application was contested by the father, but the mother was ultimately successful. After the mother and [X] returned to London to live, the mother later brought proceedings to enable her to relocate with [X] to Australia. The father eventually consented to the relocation. The father said that he was concerned that the mother's unhappiness might negatively impact on [X] if they were not permitted to return to Australia.
It is entirely understandable that the mother relocated with [X] to Australia. However, it is undeniable that the relocation has created certain practical difficulties with fostering a meaningful relationship between [X] and her father.
The father gave unchallenged evidence that, after separation and before [X] relocated to Australia, the father saw her only sporadically due to the mother’s obstructive behaviour. In particular, the father said that the mother denied [X] any time with her father for three continuous months during 2004 when [X] was only two years old. Three months is a very long time for a two year old child. The father also gave unchallenged evidence that the mother denied [X] any overnight time with her father until it was stipulated by court orders. This evidence indicates that, at least in the early post-separation period, the mother was not particularly inclined to encourage a close and continuing relationship between [X] and her father.
On the other hand, the mother notes that the father chose to continue to live in Germany for about one year after [X] had returned to England. To that extent, the father himself made it difficult for [X] to have a close and continuing relationship with him.
Since [X]'s relocation to Australia, the father said that the mother had not genuinely attempted to agree on the timing of [X]'s contact with her father in June and July with the result that the mother had in effect dictated when [X] could spend time with her father.
In particular, the father said that in 2006 he was obliged to engage Kennedy Wisewoulds to ensure an agreement was reached about [X]'s time with him for June and July of that year. The mother conceded that lengthy negotiations between her and Kennedy Wisewoulds were undertaken for that purpose. The father said, and it was not contested, that agreement was reached only six days before [X]'s time with her father was to commence. That is a very short time frame where leave from professional work needs to be organised.
The father also said that on 2 August 2008 he received a voice message from the mother saying that she was moving to a new address which she specified. However, the mother did not provide her new telephone number to enable the father to telephone [X], and did not respond to about 10 emails from the father. On 7 October 2008, the father again engaged Kennedy Wisewoulds. The mother telephoned the father on 21 October 2008 and gave the relevant telephone numbers. The father said that the mother acknowledged in a telephone conversation that she had received the father's emails but ignored them as she was unable to deal with them at the time. The mother subsequently denied that she had received the emails.
Having observed both parties give evidence, and in view of all of the evidence in the case, I do not accept that the mother did not receive the emails. However, the more fundamental point is that the mother was obliged by the orders of 24 August 2005 to facilitate reasonable telephone contact between [X] and her father. The mother clearly did not facilitate such contact for a period of two months. That was grossly unreasonable in the circumstances of this case.
The father also noted that the mother declined to accompany [X] to Europe in June and July 2009 and declined to arrange for anyone else to accompany [X]. That was contrary to the orders of 24 August 2005. The mother said that she was pregnant and could not travel. However, she produced no medical evidence that her pregnancy made travel inadvisable at the relevant time.
In fact, the mother said that her obstetrician and the airlines advised against international travel after 37 weeks gestation. The mother indicated that she was due to give birth on 13 September 2009. If she had left for Europe on about 30 June 2009 she could have returned to Australia on about 14 July 2009, when she would have been about 32 weeks pregnant. That would have allowed the mother to return to Australia about five weeks before the 37 weeks gestation point was reached. On the evidence, I do not accept that the mother was unable to travel with [X] to Europe in June and July 2009.
In any event, if the mother was unable or unwilling to travel herself, it was incumbent upon her, by reason of the orders made on 24 August 2005, to arrange for someone else to accompany [X]. The mother said that the maternal grandfather was unable to assist because of the serious illness of the maternal grandmother. I accept that the maternal grandfather could not have been expected to accompany [X] in June and July 2009. That being so, it was up to the mother to find another suitable person. The fact that she did not do so suggests that the mother, very recently, was not inclined to facilitate and encourage a close and continuing relationship between [X] and her father.
However, the mother through her counsel put to the father that he could spend the scheduled two weeks with [X] in Australia rather than in Europe. That is, the mother did not seek to prevent [X] spending the usual two weeks in June and July with her father but sought to force him to spend that time in Australia. He was unwilling to do so and ultimately took [X] to and from Europe himself in June and July 2009. This evidence suggests that the mother is willing to facilitate and encourage a close and continuing relationship between [X] and her father provided that the relationship is conducted at a time and a place determined by the mother.
On the other hand, in January 2008, the mother facilitated the father attending [X]'s first day of school, and introduced the father to the parents of some of the children in [X]'s class. [X] herself introduced her father to some of her friends and to her teacher. It was very significant and beneficial for [X] that her father was able to participate in her everyday life in this way.
Additionally, at this time, the mother invited the father and the paternal grandmother into her home to enable them to share various aspects of [X]'s home life. [X] particularly showed them her bedroom and her two dogs. It is enormously important for [X] that her father is able to visit her in her home. It is to the mother’s great credit that she facilitated contact in her home, and indeed in [X]’s home, between [X] and her father.
One way or another, it is clear that [X] does have a considerable bond with her father. Given how little time [X] has actually spent with her father, it is clear that the mother must have actively promoted a good relationship between [X] and her father. While the mother may on occasion have fallen short of the ideal, the fact remains that she has acted in [X]'s best interests by doing a very good job overall of encouraging and facilitating a close and continuing relationship between [X] and her father.
Section 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
The likely effect of [X] spending more time with her father would be to deepen her relationship with him. The likely effect of [X] spending even less time in Australia with her father than she has been would be to prevent the father gaining an understanding of [X]'s everyday life and would consequently detract from the scope for [X] and her father to have a truly meaningful relationship. The likely effect of [X] being separated from her mother for longer periods than [X] now experiences would be to cause her some anxiety, which would lessen as she gets older and which could be ameliorated by frequent telephone contact.
Section 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
There is a considerable practical difficulty and expense involved in [X] spending time with her father given that [X] lives in Melbourne and her father lives in London. However, [X] is fortunate that her father is very well paid. It seems that he earns about $A300,000 per year. The father pays £1,000 per month child support, although there has been some dispute about the offsetting of about £A4,500 in legal costs.
Similarly, the mother, although currently not working, is supported by her father. He has paid for the mother and [X] to travel business class to Europe each June and July (except in 2009), apparently pays for [X] to attend private school and apparently pays for [X]’s and the mother's home in [S], Melbourne. One way or another, [X]'s relatives have sufficient money to ensure that she is able to have personal relations and direct contact with both parents on a regular basis.
Section 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
Both of [X]'s parents have the capacity to provide for her needs including her emotional and intellectual needs, except that the father seems not to appreciate that [X] needs him to have an understanding of and participate in her everyday life here in Australia. It is only by spending time with [X] in her ordinary daily activities in her own environment that the father will be able to properly understand and connect with his daughter.
The father offers the prospect of Christmases in Europe and skiing in the French Alps. Such activities are, of course, delightful experiences. [X] would no doubt benefit from sharing such times with her paternal family. However, [X]’s greater need is for her father to have at least some involvement in her daily life.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
[X] has both an Australian background and culture and an exposure to an English and broader European background and culture.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood demonstrated by each of the child’s parents
Overall, the mother has demonstrated an admirable attitude to the responsibilities of parenthood.
The father has made strenuous efforts to be a good father to [X] notwithstanding the difficulties created by the distance between his home and [X]'s. However, the father conceded that, until November last year, he only attempted to telephone [X] every few weeks. It is good for [X] that the father he is now contacting [X] more regularly.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
The mother alleges that the father smacked [X] on one occasion. This issue has not been given any prominence in the proceedings. I would only say that smacking is a deplorable and notoriously ineffective means of promoting good behaviour in children. I trust that neither parent would ever smack [X] in the future.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
This factor does not apply in this case.
Section 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
The parents in this case have already been engaged in an extraordinary amount of litigation. There were the Hague Convention proceedings, the mother’s application in Germany for sole parental responsibility, and the mother’s application in England to relocate to Australia, as well as divorce proceedings and the current proceedings.
It would be highly preferable for the court to make the order that would be the least likely to lead to the institution of further proceedings in relation to [X]. Litigation is stressful for all concerned, including, often, any children who are the subject of the proceedings. Litigation can produce an outcome that neither party wants, and that could have been avoided by some reasonable give and take.
The orders in this case will need to be precise and prescriptive to minimise the scope for argument. The parties have demonstrated an inability to agree in a timely manner on matters of fairly marginal significance. It is extraordinary that six and a half years after separation the parents have not been able to work together more cooperatively in [X]'s best interests. It is particularly extraordinary given that both parents are capable, intelligent and apparently well balanced. They do not appear to have been affected by violence, drugs, mental illness or poverty. It is high time that they put the past behind them and focused on [X]’s best interests.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
The other facts and circumstances that are relevant in the present case are discussed below.
Section 60CC(4): Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii)communicating with the child; and
c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
These matters have been addressed elsewhere in these reasons.
Section 60CC(4A): If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The circumstances since separation have been addressed previously.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
1.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.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
[X]'s parents agree that they should have equal shared parental responsibility for her. There is no reason to depart from the statutory presumption. There will be an order accordingly.
Equal or substantial and significant time with each parent
Where the parents have equal joint parental responsibility for a child, s.65DAA of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. That section provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (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.
4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
[X]'s parents agree that the distance between the homes of the father and mother make it not reasonably practicable for [X] to spend equal or substantial and significant time with her father, at least on a fortnightly basis.
The questions for the court
Question a: discharge of previous orders
It is convenient to put all of the orders concerning [X] into a single document and to use in the orders the current language for parental responsibility, with whom [X] is to live and the arrangements for her to spend time with her other parent. For that reason, it is appropriate to discharge all of the previous orders and restate those that are non-contentious in the current language.
It is also convenient to include the non-denigration provision as an order rather than as an undertaking. Regarding the order requiring the mother to keep the father informed “well in advance” of any proposed change of the address at which [X] will live, it is desirable that the order be made more clear by specifying the period of notice and by requiring the notice to be in writing. Clarity in the orders is obviously in [X]’s best interests. It seems to me that 21 days notice would be reasonable. There will be orders accordingly.
Question b: June and July 2010 and subsequent years
[X]'s parents agree that she should spend two weeks with her father in the European Union in the June and July school holidays. The difference between the parents is that the father proposes that the two weeks begin on the first Sunday following the conclusion of [X]'s school term, and the mother proposes that the two weeks begin on the first Monday following the conclusion of [X]'s school term. The first question therefore is whether [X]'s two weeks with her father in June and July should commence on the first Sunday or the first Monday following the conclusion of [X]'s school term.
A related issue is whether, if [X] is to have only one trip overseas each year, that trip should be in June and July or in December and January. The mother prefers June and July and the father prefers December and January. For the reasons explained below, I consider that it is in [X]'s best interests that she spends time overseas with her father twice each year. Accordingly, it is unnecessary to decide whether [X] should travel in June and July as opposed to December and January.
I note that the mother is entirely willing to accompany [X] to and from London each June and July (except in 2009). The mother intends to remain in England while [X] is there and stay with the paternal grandfather. This will give [X] an opportunity to deepen her relationship with her paternal grandfather.
I understand that [X]'s school has a break of more than the usual two weeks in June and July each year. Accordingly, there is no rush for [X]'s time with her father to start. It is well known that children get quite tired by the end of term and need the break from school. Therefore, it would not be in [X]'s best interests for her to commence a long haul flight straight to London immediately after school concludes. It is in [X]'s best interests that her time with her father commences in London on the first Monday after the conclusion of term. There will be an order accordingly.
Questions c, d and e: December and January
[X]'s parents agree that she should spend more time with her father in the December and January school holidays than the existing orders permit. The father proposes that [X] spend three weeks with him in December and January in 2009 and 2010 and thereafter four weeks with him in December and January each year. The mother proposes that [X] spend three weeks with her father in December and January until she is 18 years old. The third question therefore is whether [X] should spend three weeks and then four weeks or three weeks indefinitely with her father in December and January.
The third question is intricately connected to the fourth and fifth questions. The father proposes that [X] spends time with him in December and January in the European Union. The mother proposes that [X] spends with her father in December and January in Australia. The fourth question therefore is whether [X] should spend time with her father in December and January in the European Union or in Australia.
The fifth question is whether [X] should spend time in Australia with her father in December and January each year, or whether [X] should spend time with her father in Australia at some other time if he chooses to exercise contact in Australia.
The orders made on 24 August 2005 provide for [X] to spend a week with her father in Australia each December and January. Last December and January, the father did not take the opportunity to spend any time at all with [X] in Australia. The parties are in dispute about how much time the father spent with [X] in Australia in the previous two Australian summers. Having observed the parties in the witness box and in view of all the evidence, I prefer the mother’s evidence on this issue. Consequently, I find that the father spent four days with [X] in Melbourne in January 2007 and three days with [X] in Melbourne in January 2008.
For the reasons explained previously, that is too little time for the father to come to an understanding of [X]'s ordinary daily life and consequently too little time for the father to have a proper foundation for a meaningful relationship with [X]. It is imperative that the father participates for a period of at least one week each year in [X]'s ordinary daily life. That week should be during her term time, to enable the father to engage with [X]’s teachers and friends and to participate in her extracurricular activities.
I appreciate that Melbourne might seem dull to people who live in London and who have ready access to Europe and the east coast of the United States. However, Melbourne is where [X] lives. The purpose of the father spending time with [X] in Melbourne is not his entertainment. The purpose is to enable the father to engage more fully and meaningfully with his daughter.
I have no confidence that the father would spend time with [X] in Australia if it were left up to him. The father needs some incentive to spend time with [X] in Australia.
Just as the father needs to spend time with [X] participating in her ordinary daily life in Australia to have a truly meaningful relationship with her, [X] needs to spend time with her father participating in his ordinary daily life, becoming familiar with the environment in which he lives and spending time with his friends and family.
I consider that it is in [X]'s best interests that she spends three weeks with her father in his environment in December and January each year in 2009/2010 and 2010/2011 and that [X] subsequently spends four weeks with her father in his environment in December and January each year. Mr Laidler was generally supportive of such an arrangement. I accept that three or four weeks is a long time for a child to be away from her primary carer, particularly when she is on the other side of the world. However, [X] will be with her father or her paternal grandmother who are known to her and who will no doubt be doing their best to make her happy and comfortable and to facilitate telephone contact with her mother.
I also note that [X]’s school finishes in early December with the result that she gets a longer than usual break at Christmas time. As [X] gets older, it is in her best interests that she spends four weeks rather than three with her father in Europe.
I also consider that it is in [X]'s best interests for her to sometimes spend special occasions with her father and her paternal family. [X]'s birthday is [in] January. It is in [X]'s best interests, as Mr Laidler has suggested, that her time with her father be configured so that she can spend either Christmas or her birthday with her father in alternate years. [X] herself considered this to be fair.
However, to ensure that the father spends time with [X] in Australia, it seemed to me that he should either spend one week each year during school term with [X] in Australia, or he should spend the three or four weeks in December and January with her in Australia. To achieve this, I considered that the orders should permit the father to take [X] out of Australia in December and January only if he has previously complied with the orders requiring him to spend seven days with her in Australia.
It also seemed to me that the most convenient way for the father to spend time in Australia with [X] is either immediately before or immediately after her trip to Europe each December and January. If the father’s time with [X] in Australia were added directly on to her time with the father in Europe, she would spend four or five weeks away from her mother at a stretch. That seemed to me to be too long. I considered that the best solution was for [X] to have one day with her mother after the father’s week with [X] if it is before Christmas and two days with her mother if the father’s week with [X] is after her return from Europe.
The matters discussed in paragraphs 120 and 121 of these reasons were not dealt with at the hearing or in the parties’ written submissions. Accordingly, before making a decision, I invited the parties to file further written submissions on those matters. The father filed a further written submission which, with some exceptions, was supportive of the approach outlined in paragraphs 120 and 121 above. The mother did not file a further written submission.
The father accepted that [X]’s time with him in the European Union should be contingent upon him spending time with [X] in Australia. The father also accepted that [X]’s time with him in Australia would be best structured at the commencement or conclusion of [X]’s school year.
However, the father sought that [X]’s time with him in Australia be reduced to between five and seven days to allow for flexibility in travel times. I do not accept that submission. For the reasons explained, I consider that it is in [X]’s best interests that her father spends at least seven days with her each year in her own environment.
The father also opposed [X] spending with her mother for the day or two that I had proposed immediately before her departure for Europe or immediately after her return from Europe. The father suggested that [X]’s time with him should be in a continuous period. He said that the parents could meet up for coffee or such like to enable the exchange of necessary items such as clothing.
In most circumstances, I consider that the benefits of continuity would prevail. I also appreciate that the extra day or two will prolong the father’s time in Australia. However, I consider that, given that [X] will be going overseas for a fairly extensive period, it is in her best interests that she spends a little time with her mother between her time in Australia with her father and her time overseas with him. I consider that the idea that the mother and father meet up in Australia for coffee or such like is a good one. However, that does not detract from the benefits to [X] of spending a little time with her mother either immediately before or immediately after her trips overseas.
Additionally, the father submitted that the changeover when he is not to remain in Australia should take place at Melbourne Airport rather than at the mother’s home, as I had proposed. The father submitted that this would mean that he had more annual leave to spend actively with [X]. I accept this proposal. There will be orders accordingly.
Question f: electronic communication
The mother proposed that [X] have telephone communication with her father at 9.00 am Melbourne time each Sunday. As I understand it, this would be about midnight London time. I do not consider this to be reasonable.
The father proposed that [X] have telephone and webcam communication with him at all reasonable times. If the parents were better able to deal with each other, that would be an appropriate order. However, in view of the difficulties that the parents have had, it is in [X]'s best interests that there be a prescription of the time for electronic communication, unless the parents are able to otherwise agree. I consider that the most suitable time, given the time difference between Melbourne and London, is 6.00 pm Melbourne time each Sunday.
The mother indicated to the court that she was willing to arrange for a webcam to be installed at home. This seems to me to be entirely in [X]'s best interests. It will enable her to communicate much more fully with her father. There will be orders accordingly.
Question g: unaccompanied travel
The father considered that [X] could travel unaccompanied from the age of 13 to and from London, and from the age of 12 [X] could travel unaccompanied from a transit point. The mother considered that [X] could travel unaccompanied from the age of 13.
I do not consider that [X] should travel unaccompanied until she is
13 years old, unless her parents agree otherwise. [X] at present is an ebullient young girl, in the words of Mr Laidler. However, he acknowledged that it was difficult to predict whether she would be ready for unaccompanied travel at any particular age.
At this stage, there is no proper basis upon which I could conclude that [X] could comfortably travel unaccompanied from Melbourne to London and back before she is 13 years old. However, if [X]'s parents form a different view as she matures, then they may agree to let her travel unaccompanied at an earlier age or seek appropriate orders from the court. For now, the orders will be that [X] not travel unaccompanied until she is 13 years old unless her parents otherwise agree.
The orders of 24 August 2005 provided for the mother or her nominee to accompany [X] to and from Europe in June and July each year. The mother is willing to continue to accompany [X] in June and July each year, even though the mother will soon have another baby. It is in [X]'s best interests that the same provisions continue under the new orders.
I consider that it is in [X]'s best interests that her father or his nominee accompanies [X] to and from Europe in December and January each year. The father will need to be in Australia at either the beginning or end of [X]'s time in Europe to enable him to spend one week in [X]'s environment. It makes sense for the father to accompany [X] at least one way in December and January. It may be that the paternal grandmother would wish to accompany [X] on the other journey. However, that is matter for the father to work out.
Question h: the cost of travel
The orders of 24 August 2005 provided for the mother and father to equally share the cost of [X]'s economy class travel to and from London in June and July each year and for the mother to pay her own airfare when she accompanied [X].
I see no reason to depart from that model. It is in [X]'s best interests that she spends time with her father in Europe twice a year. It seems to me that [X]'s parents should contribute equally to the cost of [X] spending time with her father in Europe twice a year. They should each pay half of [X]'s economy class return airfare in both June and July and December and January, and they should each pay one economy adult return airfare for themselves or their nominees to accompany [X].
The reality is that both parents are very well off, whether by reason of his own earnings, in the case of the father, or by reason of financial support from her father, in the case of the mother. There seems to be no reason that the parents should not contribute equally to the cost of [X] spending time with her father. There will be orders accordingly.
Question i: choice of airline
The mother wished the choice of airline to be entirely within her discretion and the father wished to limit the choice of carrier to certain airlines and in default of agreement proposed that the airline be British Airways/Qantas.
I do not consider that it is appropriate to specify any particular airline in the current orders. As we know, airlines sometimes go out of business or merge, and sometimes one airline or another has a particularly good deal or service.
I consider that it is in [X]'s best that her mother chooses the carrier in June and July and the father chooses the carrier in December and January. The relevant parent should provide to the other 42 days before travel a written statement from the relevant carrier of the cost of an economy fare for [X] on the flights on which she is booked. The other parent should pay half of that amount 28 days prior to travel. There will be orders accordingly.
Question j: travel costs for June/July 2009
Under the existing orders of 24 August 2005, the mother and father were to each pay half of [X]'s costs of travelling to Europe in June and July 2009 and the mother was to pay the costs of herself or her nominee travelling to Europe to accompany [X]. As it happened, the mother declined to travel with [X] in June and July 2009 and was unable to provide any other adult to travel with [X]. Ultimately, the father elected to accompany [X].
I see no reason for the orders of 24 August 2005 not to apply to [X]'s travel in June and July 2009. As indicated above, the same arrangement will apply to [X]'s future travel in June and July. Accordingly, there will be orders requiring the mother to pay the father half of [X]'s return economy air fare in June and July 2009 and the full cost of the father’s return economy air fare in June and July 2009.
Having said that, the mother raised the issue in these proceedings of the father’s withholding of £4,500 in child support, ostensibly because the father was obliged to resort to solicitors to secure an agreement for [X]'s travel in the past. The father in his closing submissions does not dispute that he owes the mother £4,500 in child support and proposes that the costs of travel payable by the mother to the father for June and July 2009 be offset against the outstanding child support. That strikes me as being a sensible resolution of the matter and there will be orders accordingly.
k. substantial attendance
The mother sought orders that the father be in substantial attendance at all times that [X] is in the European Union with him. The father did not specifically address this proposal. However, his evidence was that he is entitled to five weeks leave each year. Given that he is to spend two weeks with [X] in June and July in Europe, three weeks and then four weeks with [X] in December and January in Europe, and in one week with [X] in December or January in Melbourne, the father will not be able to be in substantial attendance during working hours at all times that [X] is scheduled to spend time with him. It is anticipated that the paternal grandmother will spend a considerable amount of time with [X] when she in is in Europe. Clearly, it is in [X]'s best interests that she has good relationships with the members of her extended family.
I see no reason to require the father to be in substantial attendance when [X] is in the European Union. It seems to me to be likely that the father will be with [X] as much as possible within the constraints of his work commitments. While it may be possible for the father to take unpaid leave from work to spend more time with [X], there are also benefits to her in having exposure to at least one parent who is fully engaged in the workforce in a successful and lucrative career.
l. contacts in Europe
The mother sought orders that, when [X] is with her father in Europe:
a)the father provide the mother with contact details and the addresses at which [X] will be staying at least 7 days prior to the commencement [X]’s time with him; and
b)the mother have telephone communication with [X] each Wednesday and Saturday with the mother to telephone the father’s mobile telephone number and the father to facilitate [X] taking the call.
The father did not specifically address this proposal. It seems to me to be entirely reasonable and in [X]'s best interests that the mother knows where she is at all times and that [X] has regular and frequent telephone communication with her mother when [X] is in Europe. Such communication will ameliorate any discomfort [X] might feel being away from her mother. Telephone communication on Wednesday and Saturday is reasonable and appropriate. However, I consider it to be in [X]'s best interests that a specific time for the telephone communication be nominated. It seems to me, given the time differences, that 9.00 am in the place where [X] is staying would be appropriate. Of course, the orders will provide scope for the parents to agree on other times if that is more convenient for them.
m. costs of the proceeding
In their final written submissions each party sought orders that the other party pay their costs of the proceeding. I will hear the parties on the question of costs, if either of them wishes to pursue matter, after they have had an opportunity to read these reasons for decision.
I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Ashika Kanhai
Date: 22 October 2009
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