FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAWTHORNE & RACKHAM | [2021] FCCA 559 |
| Catchwords: FAMILY LAW – Interim application – matter abridged – interstate relocation order – where mother relocates to Queensland – where mother pregnant with second child – where paternal grandparents and siblings live in Queensland – where applicant father seeks recovery order for return of child to former matrimonial home in Victoria – where parties were separated living under one roof – where father in new relationship – where medical advice precludes mother from flying late in term of her pregnancy – where mother acting protectively to retain child in Queensland – where paucity of support for mother or child in Melbourne – where mother actively affords spend and communication with father – applicable principles – application refused. |
| Legislation: Family Law Act 1975 (Cth) ss.4, 60CA, 60B, 60CC, 61C, 65D, 65DA |
| Cases cited: Atwill & Marden [2018] FCCA 1401 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MR HAWTHORNE |
| Respondent: | MS RACKHAM |
| File Number: | MLC 2009 of 2021 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 18 March 2021 |
| Date of Last Submission: | 18 March 2021 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Ms N. Sdrualig |
| Solicitors for the Applicant: | Taussig Cherrie Fildes |
| Counsel for the Respondents: | Mr J. Williams |
| Solicitors for the Respondents: | Page Provan |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth) and ss 102D-102E of the Family Law Act 1975 (Cth) (Act), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
To the extent necessary, all times for service be abridged.
The application made by paragraph 3 of the Father’s initiating application filed on 25 February 2021 seeking by way of interim relief a recovery order for the return of the child X born in 2019 (the child) to the State of Victoria be refused.
Until further order, the child live with the Mother in Region B, Queensland.
The child be permitted to communicate by video or other electronic media with the Father on no less than five occasions each week with the Mother to facilitate all such communication, and for the purposes of this Order:
a.the video calls shall take place at a reasonable time and as agreed between the parties, failing which they shall…
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- HAWTHORNE & RACKHAM [2021] FCCA 559
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- [2021] FCCA 559
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CaseChat Overview and Summary
The court was required to determine several legal issues, including whether to grant an interim recovery order for the child X to be returned to Victoria, and what interim parenting orders should be made regarding the child's living arrangements, communication with the Father, and time spent with the Father. Additionally, the court needed to address the application of these arrangements to the unborn child and establish protocols for information sharing between the parents regarding the children's health and education. The court also had to make procedural orders concerning the filing of documents, discovery, and the preparation for a final hearing.
In its reasoning, the court applied the principles outlined in Part VII of the *Family Law Act 1975* (Cth), particularly concerning the paramount consideration of the best interests of the child. The court referenced *Bondelmonte v Bondelmonte* to explain that parenting orders involve a judicial discretion exercised by reference to the best interests of the child, which encompasses a range of statutory and other relevant considerations. The primary considerations under s 60CC(2) were identified as the benefit of a meaningful relationship with both parents and the need to protect the child from harm, abuse, neglect, or family violence, with a directive to give greater weight to protection from harm where circumstances require.
The court made several orders, refusing the Father's application for an interim recovery order. It ordered that the child live with the Mother in Queensland until further order, with specific provisions for the child to communicate with the Father via video link and spend time with him in Queensland. These arrangements were to apply mutatis mutandis to the unborn child. The court also made detailed orders regarding information sharing, the preparation of a Family Report, and procedural steps leading up to a final hearing scheduled for December 2021.
Orders
Orders of the court
1.
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth) and ss 102D-102E of the Family Law Act 1975 (Cth) (Act), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
2.
To the extent necessary, all times for service be abridged.
3.
The application made by paragraph 3 of the Father’s initiating application filed on 25 February 2021 seeking by way of interim relief a recovery order for the return of the child X born in 2019 (the child) to the State of Victoria be refused.
4.
Until further order, the child live with the Mother in Region B, Queensland.
5.
The child be permitted to communicate by video or other electronic media with the Father on no less than five occasions each week with the Mother to facilitate all such communication, and for the purposes of this Order:
a. the video calls shall take place at a reasonable time and as agreed between the parties, failing which they shall occur between 4:00pm and 5:00pm Queensland time;
b. if the Mother is unable to take the call in the first instance, the Father shall be at liberty to call again after 10 minutes; and,
c. during the video calls the Mother shall ensure the child has the freedom to speak with the Father and not interfere with the video call unless it is to encourage the child to engage in the call or to clarify or assist with communication between the child and the Father.
6.
The child be permitted to spend time with the Father in Region B Queensland as may be agreed between the parties in writing, and failing agreement:
a. on the second weekend of each month so that the Father may spend time with the child and the parties’ second child (if born) on the Friday, Saturday, Sunday and Monday of that weekend;
b. the child shall spend time with the Father between 8:00am and 6:00pm, for a period of 3 hours on each day;
c. the Father shall provide written notice to the Mother of his intended date of arrival in Region B Queensland no less than 14 days prior to the arrival date with such written notice to also nominate the days and times that the Father wishes to spend with the child;
d. changeover shall occur at McDonalds Restaurant, C Street, Town D, Queensland, or at such other place as the parties may agree in writing;
e. the Mother shall be responsible for the Father’s airfare costs for return economy flights from either Melbourne or Tullamarine airport to Brisbane airport for the purpose of spending time with the child(ren) (to a maximum of ten return flights until further Order) and shall reimburse the Father for his airfare costs within 7 days of the Father providing to the Mother a tax invoice or receipt evidencing the airfare costs.
7.
Paragraphs 4, 5 and 6 of this Order shall apply mutatis mutandis in respect of the spend time and communication arrangements for the Father in respect of the unborn child that is due to be delivered in 2021 (second child), such arrangements to be operative with effect from three days after the delivery of the second child, or as may otherwise be agreed in writing.
8.
The parties shall:
a. keep the other parent informed at all times of each other’s contact telephone numbers and address and notify the other parent within 7 days of any change in their contact number or address;
b. keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child or the parties’ second child (if born);
c. inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child or the parties’ second child (if born); and
d. inform the other parent of any medical appointments, immunisations or healthcare check-ups within a reasonable time and also ensure that both parents are provided the details of any results of such check-ups, appointments or procedures.
9.
By this Order, the parties authorise the day care centres attended by the child and the parties’ second child (if born), to give each parent information about the children’s educational progress and any other care related activities and supply them with copies of any reports, newsletters, letters and general notices, photographs, certificates, and awards obtained by the children (at the requesting parent’s cost).
10.
The parties authorise the other parent to obtain medical and healthcare information in relation to the child and the parties’ second child and authorise health and medical providers to discuss the children’s health needs with either parent.
11.
The parties and the child shall attend an agreed Family Report writer and in default of agreement the Mother will nominate three Family Consultants and the Father will select one of these three Family Consultants for the purposes of the preparation of a Family Report at the equal shared expense of the parties to be given to the Court and to facilitate the preparation of such a report:
a. the parties shall attend upon the Family Consultant as directed by the Family Consultant.
b. the Family Report shall address the matters relevant to sections 60CC, 61DA and 65DAA of the Act and any other matters that the Family Consultant considers important to the welfare or best interests of the child;
c. the parties shall comply with all reasonable directions of the Family Consultant;
d. within 7 days of being notified of the Family Consultant, the solicitor for each of the parties (or, if unrepresented, then the party themselves) shall deliver to the Family Consultant copies of the following documents:
i. all relevant applications, responses, recent affidavits filed by or on behalf of each party; and
ii. any intervention or restraining orders currently in force.
e. the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.
Procedural orders
12.
The father shall make file and serve any Amended Initiating Application, Financial Statement and any material in support concerning any application for an adjustment of property interests on or before 4:00pm on 29 March 2021.
13.
The Mother shall make file and service any Amended Response and any material in support concerning any application for an adjustment of property interests on or before 4:00pm on 12 April 2021.
14.
By consent, within 28 days of this Order the Father shall respond in writing (with supporting documents) to each of the queries raised by the letter dated 16 March 2021 addressed by the respondent’s solicitors to his solicitors.
15.
Within 28 days of this Order each party identify the categories of documents of which discovery is sought in this proceeding.
16.
Within 28 days thereafter, each party make discovery of the documents that has been sought of them by the other.
17.
The proceeding be listed for mention at 10:00 on Tuesday, 15 June 2021.
18.
The matter be fixed for Final Hearing at 10.00am on Monday, 6 December 2021 in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 2 days.
19.
The following directions are made respecting discovery and use of documents at trial:
a. no later than four months before the trial date, the parties are to confer and identify all documents which they propose to adduce in evidence at trial (Documents);
b. no later than two months before the trial date, the applicant shall prepare, serve and file an indexed paginated folder of the Documents arranged in chronological order;
c. no Documents (including any valuations, family report or other expert reports) are to be attached to any affidavit, but may only be referred to in an affidavit by page number and volume (if necessary), from the folder(s) of Documents;
d. save with leave of the Court, no document identified pursuant to paragraph 19(a) of this Order may be relied upon or adduced in evidence at trial.
20.
Each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief) and further:
a. the applicant electronically file and serve any affidavits to be relied upon at the Final Hearing not later than 28 days prior to that hearing;
b. the respondent electronically file and serve any affidavits to be relied upon at the Final Hearing not later than 21 days prior to the hearing.
21.
The evidence in chief of each party and any witness be by way of affidavit as provided by this order.
22.
Other than as provided in this Order, no party may file or rely upon any further evidence without leave of the Court.
23.
Not later than one month prior to the Final Hearing all parties do electronically file and serve an Outline of Case Document (not exceeding 12 pages) including:
CHILDREN
(a) a list of the material relied upon;
(b) a brief chronology listing significant events;
(c) a list of the significant factual issues requiring determination;
(d) a list of contentions with respect to each of the considerations relevant to determining the best interests of the child/ren (s 60CC factors);
(e) a list of contentions relevant to the operation of s 65DAA of the Act;
(f) a list of any other contentions relevant to the decision; and
(g) the actual orders sought.
PROPERTY
(a) a list of the material relied upon;
(b) a proposed asset pool identifying each of the assets, liabilities and superannuation interests said to comprise that asset pool;
(c) a minute of the proposed final order.
24.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A. The parties have been requested to consider the issue of mediation prior to the mention of the proceeding on 15 June 2021.
B. The parties have been further requested to submit in advance of the mention on 15 June 2021, a joint minute of the orders to be sought at that mention.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Part VII of the Act concerns the subject, Children, is arranged in 16 Divisions and comprises ss 60 – 70Q. Section 65D provides that the Court may make such parenting order as it thinks ‘proper’. In Bondelmonte v Bondelmonte,[1] the Court said of the power conferred by s 65D:A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (emphasis added)The inherently evaluative nature of the exercise of this power is thus apparent.[1] (2017) 259 CLR 662, [8]. The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence: Act, s 60B(1)(b). The principles underlying those objects recognise the manifold rights of children with respect to their parents: s 60B(2). The principles in s 60B(2) are expressed as being subject to an exception: “except where it is or would be contrary to the child’s best interests”. In determining the best interests of a child, two primary considerations must be taken into account. By s 60CC(2), the Court must consider: a)the benefit to the children of having a meaningful relationship with both of their parents; andb)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.Act, ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations). Additional considerations are prescribed by pars 60CC(3)(a)-(m). The Court is required to give greater weight to protecting children from physical or psychological harm and from being subjected, or exposed, to abuse, neglect or family violence.[2] Where the circumstances require, the need for protection from harm as addressed by par 60CC(2)(b) may well assume prominence over allowing for a meaningful relationship with both parents as addressed in par 60CC(2)(a). This conclusion is reinforced by the exception provided for in par 60B(2).[2] Amendments to the Act effected by sub-s 60CC(2A) became operative from 7 June 2012. When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount, but not sole, consideration: Act, s 60CA; Morgan & Miles;[3] Franklyn & Franklyn.[4] [3] (2007) FLC 93-343, [59], [73], [79]-[80].[4] [2019FamCAFC 256, [28] and cases cited.