FAMILY COURT OF AUSTRALIA
| HEATH & HEMMING (NO 2) | [2011] FamCA 749 |
| FAMILY LAW – CHILDREN – Principles to be applied to parenting matters including proposed relocation – Review of recent Full Court decisions in relocation cases – Application where the child’s paternal grandmother returning to New Zealand – Where no meaningful relationship established between mother and child |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Champness & Hanson (2009) FLC 93-407` Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010) Cowley & Mendoza (2010) 43 Fam LR 436 Edelman & Ziu (No 2) [2010] FamCAFC 236 Godfrey & Sanders [2007] FamCA 102 Goode & Goode (2006) FLC 93-286 Hepburn v Noble (2010) FLC 93-438 M & S (2007) FLC 93-313 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Marvel & Marvel (2010) 43 Fam LR 348 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 Sigley & Evor (2011) 44 Fam LR 439 U v U (2002) 211 CLR 238 |
| APPLICANT: | Ms Heath |
| RESPONDENT: | Mr Hemming |
| FILE NUMBER: | BRC | 11091 | of | 2008 |
| DATE DELIVERED: | 27 September 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 15-16 August 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Linklater-Steele of Counsel |
| SOLICITOR FOR THE APPLICANT: | DK Law |
| COUNSEL FOR THE RESPONDENT: | Mr Selfridge of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Wrightway Legal |
Orders
Interpretation
Subject to paragraphs 2 and 3, for the purpose of these Orders “the conditions” means:
(a)The Mother providing to the Father a written report of Dr W in which Dr W expresses the opinion that the Mother’s depression has resolved; and
(b)The Mother providing to the Father written confirmation from Clinic 1 Alcohol Tobacco and Other Drugs Service (ATODS) that the Mother:
(i)Has, for a period of not less than six (6) months, remained on the Suboxone program under the auspices of the Clinic 1 ATODS and complied in every respect with the requirements of that program; and
(ii)Has returned, over a continuous period of six (6) months, a clear result from random monthly urine screens; and
(c)The Mother providing to the Father written confirmation from Clinic 1 ATODS that the entity has been authorised by the Mother to, and is prepared to and will, advise the Father of any of the following events which are within the means of knowledge of Clinic 1 ATODS:
(i)The Mother suffering a relapse of her depression; or
(ii)The Mother failing to comply in any material respect with the treatment prescribed for her by Dr L; or
(iii)The Mother returning an unclear result on any urine drug screen; or
(iv)The Mother failing to comply in any material respect with the Suboxone program under the auspices of Clinic 1 ATODS; and
(d)The Mother providing to the Father written confirmation from Dr L that Dr L has been authorised by the Mother to, and is prepared to and will, advise the Father of any…
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- Heath & Hemming (No 2) [2011] FamCA 749
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- [2011] FamCA 749
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CaseChat Overview and Summary
The court was tasked with determining the precise meaning and application of "the conditions" that the Mother was required to fulfil. These conditions encompassed obtaining reports from medical professionals confirming the resolution of her depression, demonstrating sustained compliance with a Suboxone program and negative urine drug screens, and ensuring that her treating practitioners were authorised to inform the Father of any relapses or non-compliance. The court also had to consider provisions for alternative practitioners and the implications of the Mother permanently residing in New Zealand. Further issues included the division of parental responsibility, the child's residence, and the specific arrangements for J's time with each parent, both before and after any potential relocation.
Kent J's reasoning focused on the detailed interpretation of the orders, particularly the definition of "the conditions." The court clarified that these conditions were to be strictly met and that any subsequent failure to maintain them would require the Mother to re-fulfil all conditions. The orders also provided for flexibility in the event of practitioners being unavailable or the Mother relocating, outlining a process for nominating alternative professionals and services. The court's approach was to provide a clear framework for the parents to follow, aiming to ensure J's welfare while facilitating the Mother's rehabilitation and increased involvement in J's life. The orders established a phased approach to unsupervised time and communication, contingent on the Mother's ongoing adherence to the specified conditions, and addressed the significant step of relocating J to New Zealand.
Orders
Orders of the court
Interpretation
1.
Subject to paragraphs 2 and 3, for the purpose of these Orders “the conditions” means:
(a) The Mother providing to the Father a written report of Dr W in which Dr W expresses the opinion that the Mother’s depression has resolved; and
(b) The Mother providing to the Father written confirmation from Clinic 1 Alcohol Tobacco and Other Drugs Service (ATODS) that the Mother:
(i) Has, for a period of not less than six (6) months, remained on the Suboxone program under the auspices of the Clinic 1 ATODS and complied in every respect with the requirements of that program; and
(ii) Has returned, over a continuous period of six (6) months, a clear result from random monthly urine screens; and
(c) The Mother providing to the Father written confirmation from Clinic 1 ATODS that the entity has been authorised by the Mother to, and is prepared to and will, advise the Father of any of the following events which are within the means of knowledge of Clinic 1 ATODS:
(i) The Mother suffering a relapse of her depression; or
(ii) The Mother failing to comply in any material respect with the treatment prescribed for her by Dr L; or
(iii) The Mother returning an unclear result on any urine drug screen; or
(iv) The Mother failing to comply in any material respect with the Suboxone program under the auspices of Clinic 1 ATODS; and
(d) The Mother providing to the Father written confirmation from Dr L that Dr L has been authorised by the Mother to, and is prepared to and will, advise the Father of any of the following events which are within the means of knowledge of Dr L:
(i) The Mother suffering a relapse of her depression; or
(ii) The Mother failing to comply in any material respect with the treatment prescribed for her by Dr L; or
(iii) The Mother returning an unclear result on any urine drug screen; or
(iv) The Mother failing to comply in any material respect with the Suboxone program under the auspices of Clinic 1 ATODS; and
(e) The Mother providing to the Father written confirmation from Dr L of the monthly appointments scheduled by the Mother with Dr L over the following six (6) months; and
(f) The Mother being free of depression and remaining compliant with her Suboxone program under the auspices of Clinic 1 ATODS.
2.
(a) In the event that Dr W is unable or unwilling to be involved in this matter at any time in the future, then the Mother shall provide the Father with the names of three (3) independent practicing psychiatrists and the Father shall forthwith nominate to the Mother in writing one of them, and for the purpose of interpreting and applying these Orders the name of that nominee is to be read in lieu of “[Dr W]” wherever “[Dr W]” appears in these Orders.
(b) In the event that the Mother undertakes treatment for her opioid dependence from a facility or service other than Clinic 1 ATODS then, provided that such other treatment provider is an equivalent service to Clinic 1 AROD then, for the purpose of interpreting and applying these Orders, the name of that other provider is to be read in lieu of “[Clinic 1 ATODS]” wherever “[Clinic 1 ATODS]” appears in these Orders.
(c) In the event that the Mother commences to consult a treating psychiatrist other than Dr L, then the Mother shall notify that in writing to the Father and for the purpose of interpreting and applying these Orders the name of that other treating psychiatrist is to be read in lieu of “[Dr L]” wherever “[Dr L]” appears in these Orders.
3.
If the Mother commences to permanently reside in City 1, New Zealand, on or after 1 August 2012, then:
(a) The Mother shall forthwith give the Father notice of that fact; and
(b) The Father shall nominate a Contact Centre in City 1, New Zealand; and
(c) The Father shall forthwith, after being given such notice, provide to the Mother a panel of three names of independent psychiatrists practicing in City 1, New Zealand, from which the Mother will nominate a psychiatrist to act in lieu of Dr W; and
(d) The Mother shall forthwith nominate to the Father the name of a provider of a program in City 1, New Zealand which is the equivalent of the Suboxone program conducted by Clinic 1 ATODS that the Mother proposes to attend; and
(e) The Mother shall nominate to the Father the name of her treating psychiatrist in lieu of Dr L; and
(f) The nominees referred to respectively will thereafter be substituted for the names appearing in paragraph 1 respectively and “the conditions” where referred to will be read, interpreted and applied accordingly.
4.
For the purpose of interpreting and applying these Orders, if at any time the Mother, having fulfilled all of the conditions, subsequently fails to fulfil any of them, the Mother must again fulfil each and every of the conditions set out in paragraph 1 for the purpose of “fulfilling the conditions” within the meaning of that expression, wherever it appears in these Orders.
Parental Responsibility
5.
The Father and Mother shall have equal shared parental responsibility for the child of the marriage, J Hemming, born … July 2004 (“[J]”) in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended).
6.
The parents shall each have, during all such time that J is in their respective care, sole parental responsibility in respect of issues that are not “major long-term issues”.
Co-Parenting Arrangements
7.
J shall live with the Father.
8.
Subject to subparagraph (d) hereof, in the period until 1 August 2012, the Father shall not relocate J’s place of residence away from the Gold Coast, Queensland, and J shall spend time and communicate with the Mother as follows:
(a) Pending the Mother fulfilling the conditions, and in respect of any period where any of the conditions is unfulfilled:
(i) For a period of two (2) hours each alternate Saturday at Contact Centre 1 to be supervised;
(ii) For a period of four (4) hours on Easter Sunday 2012, to commence at 9.00am, with the parties to meet at Food Outlet 1 in Gold Coast Suburb 1, such time to be in the general presence of the Father and the parties are at liberty to spend some or all of the time at the Gold Coast Suburb 2 Park;
(iii) For a period of four (4) hours on … July 2012 for J’s birthday, with the parties to meet at Food Outlet 2, Gold Coast Suburb 3, at 12.00pm midday, such time to be in the general presence of the Father and the parties are at liberty to spend some or all of the time at the Gold Coast Suburb 2 Park.
(b) By telephone each Wednesday at 6.00pm, with the Father to supply the Mother and keep her supplied with a landline and mobile telephone number that she may call J on.
(c) The costs associated with the Contact Centre shall be borne equally between the parties.
(d) Between the date of these Orders and 1 August 2012, the Father shall be permitted to take J to New Zealand for a visit of not more than twenty-one (21) days’ duration, including the day of departure and day of return and the Father shall give the Mother not less than one (1) month’s notice in advance of such a proposed visit.
9.
Upon the Mother fulfilling the conditions, and in respect of any period in which the conditions are fulfilled, J shall spend unsupervised time and communicate with the Mother each alternate weekend as follows:
(a) On the first two such weekends, from 9.00am to midday on each of the Saturday and Sunday;
(b) On the next two such weekends, from 9.00am to 1.00pm on each of the Saturday and Sunday;
(c) On the next two such weekends, from 9.00am to 5.00pm on each of the Saturday and Sunday;
(d) Thereafter, from 9.00am Saturday to 5.00pm Sunday on such weekends;
with all changeovers to occur at Contact Centre 1 unless otherwise agreed in writing between the parties.
10.
From 1 August 2012, the Father, on providing the bond referred to in paragraph 11, shall be permitted to relocate J to live in City 1, New Zealand.
11.
As and by way of security for the funding by the Father of the Mother’s international travel and accommodation expenses as provided for in these Orders, the Father shall deposit the sum of $10,000.00 to the trust account of his solicitors, such sum to be invested in an interest bearing deposit by those solicitors on trust for the parties, and:
(a) The Father shall ensure such deposit is maintained in a sum not less than $10,000.00 at all times that the Father is liable for the Mother’s said expenses under the terms of these Orders; and
(b) The Father shall provide an irrevocable authority to the said solicitors, authorising the solicitors to withdraw from the fund and pay any amount required to meet the Mother’s said expenses which the Father fails to pay; and
(c) The Father will be entitled to reimbursement of the capital of the fund and interest accrued thereon as at 4 July 2016 when the child turns 12 years of age or, in the event paragraph 14 operates, upon that event, whichever first occurs.
12.
For any period that J is residing in City 1, New Zealand, and the Mother is likewise residing in City 1, New Zealand, then J shall spend time and communicate with the Mother in accordance with paragraphs 1, 8 and 9 hereof in the same manner as those paragraphs would apply if both J and the Mother had remained in Australia, with the amendments identified in paragraph 3 hereof applying as necessary to give effect to those paragraphs.
13.
For any period that J is residing in City 1, New Zealand, and the Mother is continuing to reside permanently in Australia or otherwise outside of New Zealand:
(a) Provided the Mother has fulfilled or is fulfilling the conditions, the Father will pay the cost of the Mother travelling from the east coast of Australia to City 1, New Zealand, (including economy flights and reasonable accommodation for two nights) for J to spend time with the Mother during eight (8) weekends in each year from 9.00am Saturday to 5.00pm Sunday on such weekends, and for this purpose:
(i) The Mother is to provide the Father with written notice of each proposed weekend visit to New Zealand of at least one (1) month, including travel dates and proposed times, and in the event that the parents are unable to agree on the Mother’s travel dates, such weekends shall be the last weekend in February, April, May, July, August, September, October and November in each year;
(ii) The Father shall book and pay for the Mother’s flights and accommodation for such visits upon the parties agreeing on the travel dates, or in accordance with (i) above, and the Father shall provide the Mother with flight and accommodation details within seven (7) days of making any booking.
(b) If the Mother has fulfilled, and is fulfilling, the conditions, and if the Mother is able to fund her own travel and accommodation to City 1, New Zealand, for further weekends during the year, then J shall spend time with the Mother on such further weekends from 9.00am Saturday to 5.00pm Sunday, provided the Mother gives not less than fourteen (14) days’ notice of her intention to travel to City 1, New Zealand, for such weekends and provided that, in any calendar month, there be a maximum of two such weekends, inclusive of the weekend time provided for in paragraph 12 above.
(c) If the Mother does not fulfil any of the conditions, or in respect of any period in which any of the conditions are not fulfilled, then J’s time with the Mother shall be supervised, and for that purpose:
(i) J shall spend time with the Mother for two (2) hours on each of the Saturday and Sunday of the eight weekends referred to in paragraph 13(a) above at a Contact Centre in City 1, New Zealand, which provides for supervision and the Father shall, subject to paragraph 14, be responsible for the Mother’s costs of travel and accommodation in the same manner as is provided for in paragraph 13;
(ii) The Father and the Mother shall forthwith do all acts and things necessary to make arrangements in advance for the facility of such a Contact Centre to be made available to them in the event that supervision is required.
14.
If, by 1 August 2012, the Mother has not fulfilled all of the conditions, or if thereafter the Mother fails to keep all of the conditions fulfilled and that failure persists for a continuous period of not less than six (6) months, then the Father’s obligations to fund airfares and accommodation of the Mother, as set out above, will cease and the Mother will be solely responsible for funding her airfares and accommodation for the purpose of J spending time with her on the weekends provided for as above and if the Mother funds such expenses then J shall spend time with the Mother as provided for in paragraph 13(c) above.
15.
On and from 1 August 2012 the Father be at liberty to travel both domestically and internationally with J provided that:
(a) The Father is to provide the Mother with at least one month’s notice of the Father’s intention to travel including itinerary, flight details and telephone contact details for J at all times during travel;
(b) Any travel proposed by the Father does not prevent or interfere with any pre-arranged travel or time the Mother spends with J in accordance with these Orders;
(c) If the Father proposes travel for a period exceeding one (1) month, and there are no pre-arranged bookings or arrangements for the Mother to spend time with J during that period, the Father be at liberty to provide the Mother with two (2) months’ notice of his intention to travel with the child, including itinerary, flight details, telephone contact details for J at all times during travel and a reasonable proposal (including at least two (2) proposals for the Mother to select from) detailing how any time the Mother would otherwise have spent with J during that period (if applicable) can be facilitated either prior to or after the proposed travel dates.
16.
The Mother be permitted to telephone or Skype J on one occasion per week at a regular time nominated by the Mother and any other times J is willing to speak to the Mother on the telephone or via Skype.
17.
The Mother and Father keep the other parent informed in writing of the names and addresses of any treating medical or other health practitioners that treat the child and this Order is authority for any treating medical or other health practitioner to release J’s medical information to the other parent at the expense of the parent requesting such information.
18.
This Order is authority for J’s school to give each parent any information about the progress of J’s education and other related activities at the expense of the parent requesting such information. However, if the school is unable to issue more than one copy of any such information, the father undertakes to provide electronic copies of that information to the Mother within seven (7) days of receiving it from the school.
19.
During the time J is to spend with each parent, that parent shall:
(a) Respect the other parent’s privacy; and
(b) Not denigrate or insult the other parent, or their partner or family members in the presence or hearing of the child.
20.
If, after relocating to New Zealand, J is visiting the Gold Coast with the Father or the Paternal Grandmother in any period coinciding with time J is due to spend with the Mother, then the Father may elect to have that time spent on the Gold Coast in lieu of in New Zealand by giving the Mother one (1) month’s advance notice.
21.
Pursuant to section 121(9)(g) of the Family Law Act 1975 (Cth), the Court approves the provision, by the parties, of:
(a) These Orders; and
(b) The Reasons for Judgment; and
(c) The report of Dr W filed herein; and
(d) The report of Mr P filed herein;
to each of:
(e) Dr L or any treating psychiatrist of the Mother from time to time; and
(f) Clinic 1 ATODS (or any alternate referred to in paragraph 2); and
(g) Dr W (or any alternate referred to in paragraph 2); and
(h) Mr P; and
(i) Any counsellor providing counselling to J from time to time.
22.
That in the event that after J is living in New Zealand but is travelling to Queensland at any time, the Father shall:
(a) Advise the Mother at least seven (7) days prior to the travel as to the arrival and departure times for J; and
(b) Ensure that J is made available to spend time with the Mother at all reasonable times the Mother nominates in respect of J being in Australia consistent with the following, including:
(i) For at least two (2) nights in each fourteen (14) night period;
(ii) In the event that the period is between seven (7) and fourteen (14) nights, for at least one (1) night;
(iii) In the event that the period is less than three (3) nights, then for at least half a day;
provided that the Mother has fulfilled and is fulfilling the conditions at the time of such visits.
23.
That the Mother be at liberty to communicate with the child by e-mail and mail at all times. For the purpose of e-mail communication, the Father shall establish an e-mail account for J and teach her how to manage the account and the Father shall be responsible for establishing and maintaining such e-mail account at his cost.
24.
That from the time J commences to live in New Zealand the Father shall make J available to communicate with the Mother by Skype at least once each week (such Skype call to occur between 5.00 pm and 6.00 pm New Zealand time) and on special days, including the Mother’s birthday, the child’s birthday, Mother’s Day and Christmas Day, when the child is not otherwise with the Mother.
25.
That the Mother be at liberty to communicate with J by Skype at all other reasonable times at J’s request.
26.
That neither parent denigrate, nor allow any third parties to denigrate, the other parent to, or in the presence or hearing of the child.
27.
That both parents do all acts and things reasonably necessary to promote the relationship between J and both parents and the Paternal Grandmother.
28.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
29.
Pursuant to s 65L of the Family Law Act 1975 (Cth), the Family Consultant, Mr P, is requested to provide to the Mother such assistance as is reasonably requested by the Mother in relation to compliance with, and the carrying out of, these Orders.
30.
The Father shall ensure that the Mother is requested to be involved in any counselling that is undertaken of J by a qualified counsellor to the extent that such involvement is deemed necessary or helpful by such counsellor.
31.
Each party have liberty to apply on the carrying into effect of these Orders, and specifically each party have liberty to apply within fourteen (14) days to seek to be heard further solely on the question of the financial bond to be provided by the Father as provided for above.
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
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