Hertwig and Hertwig (No 2)
[2018] FamCA 912
•9 November 2018
FAMILY COURT OF AUSTRALIA
| HERTWIG & HERTWIG (NO 2) | [2018] FamCA 912 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the mother seeks an adjournment of her application for a stay pending the father providing her with disclosure of his current Country B visa – Where the father seeks an application for an anti-suit injunction restraining the mother from commencing proceedings in a Country B court – Where the Court is not persuaded that these proceedings should be adjourned to allow her to get full disclosure of the father’s visa status so that the mother can try to invoke the jurisdiction of a Country B court. FAMILY LAW – PRACTICE AND PROCEDURE - Stay of Proceedings – Where there are no proceedings in respect of parenting matters being currently heard in any Country B court – Where there is no evidence demonstrating that the courts of Country B have or would exercise jurisdiction in respect of parenting matters – Where the mother commenced parenting proceedings in this Court and proceedings are well underway – Where this Court is clearly not an inappropriate forum and the proceedings will not be stayed on this basis – Where the Court is also not satisfied that the mother’s submission that it is in the best interests of the child to stay the proceedings in this Court is a sound basis for a permanent stay and in any event, finds that it would be a flagrant abrogation of responsibility to not determine the dispute for which this Court clearly has jurisdiction. |
| Family Law Act 1975 (Cth) |
| Chen & Tan [2012] FamCA 225 Henry v Henry (1996) 185 CLR 571 Kemeny v Kemeny (1998) FLC 92-806 Kent & Kent (2017) FLC 93-792 Navarro v Jurado (2010) 44 Fam LR 310 Voth and Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
| APPLICANT: | Ms Hertwig |
| RESPONDENT: | Mr Hertwig |
| INDEPENDENT CHILDREN’S LAWYER: | Deborah Awyzio |
| FILE NUMBER: | BRC | 2437 | of | 2016 |
| DATE DELIVERED: | 9 November 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 29 October 2018 |
REPRESENTATION
| THE APPLICANT: | Self-represented (by telephone) |
| THE RESPONDENT: | Self-represented (by telephone) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Awyzio DA Family Lawyers |
Orders
That the mother’s application for an adjournment of her application for a permanent stay of these parenting orders proceedings be dismissed.
That the mother’s application for a permanent stay of these parenting orders proceedings be dismissed.
That the father’s application for an anti-suit injunction against the mother be dismissed.
That the father forthwith cause to be delivered to the mother the Australian passports of the three children, X born … 2006, Y born … 2008, and Z born … 2011, (“the children”) and, notwithstanding the existing Orders allocating parental responsibility for the children equally between the parents, the mother shall be solely responsible, until further order, for holding the children’s Australian passports and for obtaining and renewing, as necessary, valid visas from the Government of Country B for the children, permitting them to reside in Country B, and for presenting the children’s Australian passports to Country B authorities as required.
That the mother’s application for interim sole parental responsibility be dismissed.
That each of the mother and the father be restrained from taking all or any of the children for counselling without the written consent of the other parent and the Independent Children’s Lawyer first obtained or further order of this Court.
That until further order of this Court each of the mother and the father be restrained from involving the children in the adult parenting dispute.
That the mother shall immediately reinstate the parenting regime provided for in paragraph 5 of the Orders of Tree J of 17 June 2016, in particular, as long as the father remains in Country B, the week about parenting regime provided for in paragraph 5(c)(iii) of those Orders.
Notwithstanding paragraph 8 hereof, the children shall spend some additional make-up time with the father having regard to the fact that the mother has withheld them from the father for approximately four months, such make-up time to be provided as follows:
(i)For one extra week on the end of the first week the children spend with the father pursuant to paragraph (8) hereof, so that they, in fact, spend a block of two weeks with him in the first instance, before the week about regime then starts again;
(ii)For one extra week on the end of the first week the children spend with the father in the coming December-January Country B school holidays, so that they, in fact, spend a block of two weeks with him in those holidays before the week about regime then starts again.
That paragraph 5(a) of the Orders of Tree J of 17 June 2016 be varied by changing the 6:00 pm time for the electronic communication each Sunday, Monday, Wednesday and Friday to 7:00 pm Country B time.
That these Orders entitle the father:
(a) to attend at the school in Country B that the children attend:
(i)for the purposes of collecting the children at the commencement of the time they spend with him pursuant to these orders and dropping them off at the end of that time;
(ii)for the purposes of business normally conducted between a parent of a child attending the school and the administration and teaching staff of the school;
(iii)for attendance at any function or event at which the parents of children attending the school are welcome;
(b)to obtain from the school at his expense, if any, any and all information the school may lawfully provide to a parent of a child attending the school;
and, for certainty, the mother shall forthwith provide the school with a written authority confirming the father’s entitlements pursuant to this Order.
The mother and the father shall attend upon Mr C in Brisbane in March 2019, as directed by the Independent Children’s Lawyer, for the purposes of him interviewing them in order to prepare an updated Family Report in these proceedings; the mother shall ensure the children are brought to Australia and presented to Mr C at the same time; and the costs of the children’s airfares from Country B to Australia and return are to be shared equally by the mother and the father.
The mother and the father are to forthwith take all steps necessary to cause a copy of the sealed form of these Orders to be translated into the Country B language and registered with a court in Country B such that they are enforceable by either parent in Country B.
The directions hearing currently listed before a Registrar of the Court on 6 December 2018 be vacated and the parenting proceedings be listed for a Trial Management Hearing before his Honour Justice Forrest at 10.00 am on Wednesday, 6 February 2019, with the mother and the father having leave to appear at such hearing by telephone if they so desire.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hertwig & Hertwig (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 2437 of 2016
| Ms Hertwig |
Applicant
And
| Mr Hertwig |
Respondent
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
This parenting orders matter was commenced in the Federal Circuit Court by the mother in March 2016. She applied for orders to facilitate obtaining passports for the three children, orders that the children live with her and that she have sole parental responsibility for them. The proceedings were transferred from that Court to this Court in April 2016. In response, the father sought orders that the children live with him and for equal shared parental responsibility.
In June 2016, Tree J of this Court was asked to make interim Orders with the consent of the mother and the father. He did. They were comprehensive. They conferred parental responsibility equally on the two parents. They provided for the three children (who are now 11, 10 and 7 years of age) to live with the mother in D Town, northern Country B. They provided for the children to spend time with the father and, in particular, if he was able to spend time in Country B for longer than fifteen days at a time, for seven days each fourteen days.
Those consent interim orders provided for the parties to do certain things to cause valid Australian passports to issue for each of the children and they provided a means by which the passports could be released to the mother so that she could travel with the children from Country B to Country E for the purpose of obtaining valid Country B visas for the children. The passports were to then be returned to a safe deposit box in Country B, requiring the written consent of both parents to be released, with the father to pay the costs of maintaining the safe deposit box.
In September 2016 the mother and the father and the children attended in Brisbane upon Mr C, social worker, for the purposes of him interviewing them and preparing a family report. That was prepared and filed with Mr C’s affidavit in December 2016. The Court was told at the hearing earlier this week that Mr C recommended that the children continue to live with the mother in Country B.
An Independent Children’s Lawyer was appointed in 2016 also.
In July and August 2017, the mother and the father were each interviewed in Australia by Dr F, psychiatrist. He has prepared a report for the Court also.
In 2016 or early 2017, sometime after the interim consent Orders were made, the father travelled to Country B and has been living there ever since. Until approximately four months ago, pursuant to the interim Orders of 2016 the children were living week about with each of the parents. It appears the parents, though experiencing a highly conflictual relationship, live fairly proximate to each other. There is no dispute that the mother has withheld the children from spending time with the father now for those last four months. She asserts she has good reason for that. The father asserts she does not.
The parents remain in serious dispute about the children and I apprehend the fact that the matter has not progressed to trial in the meantime is founded in this serious dispute. Much of the disputation is seemingly founded around the mother’s desire and expressed intention to continue living with the children in Country B and the father’s opposition to that, based in his desire for the children to live with him in Australia. I apprehend much of the disputation around who holds the children’s passports and who is responsible for obtaining the children’s visas permitting them to continue living in Country B is tactically driven by the parents’ respective views as to how their respective positions in the pending final parenting proceedings might be strengthened or weakened by the possession of passports and the Country B visa status of the children.
This latest interim disputation requiring determination
The mother filed an Application in a Case seeking a permanent stay of the parenting proceedings in this Court. However, at the same time she asks for an Order that the children’s passports be made available to her and that she be permitted to keep them in her possession. She also wants an Order conferring sole parental responsibility upon her on an interim basis. After the father filed his Response to her Application in a Case, she amended her Application in a Case to seek an adjournment of her application for a stay pending the father giving her disclosure of the visa he possesses permitting him to stay in Country B.
In his Response, the father counters with an application for an anti-suit injunction restraining the mother from commencing proceedings in a Country B court. He seeks orders that they both be required to join in applying to a Country B court to register the orders of this Court. He seeks orders for make-up time with the children for the four months he has had no time with them. He seeks orders that telephone communication also recommence; that he be permitted to attend at the school the children attend; that he be responsible for securing valid visas for the children permitting them to stay in Country B; that the children’s passports be held by a third party; that the children attend counselling; and that the children be brought to Australia by him for the purposes of preparing an updated family report to get the matter on for trial.
Some more relevant factual background
The factual circumstances of the matter are indeed intriguing in that both parents live and work in northern Country B. They moved to live in Country B in 2007 and their eldest child was six months old at the time. The two younger children were each born in Country B. According to the mother, the former couple separated in December 2014 (the father asserts it was February 2015) and for about six months the parents moved in and out of their home on a weekly basis so that the children had the continuity of living in the family home in Country B. The father left Country B and returned to Australia in December 2015 but, as I have already observed, returned to live in Country B in late 2016/early 2017.
Unsurprisingly, there does not appear to be any dispute that the children, being Australian citizens like their parents, require visas to live lawfully in Country B and that their visa status usually trails or follows the status of the parent who has them in his or her care at the relevant time and makes application on the children’s behalf for their visas.
The mother told the Court that she has been completely transparent about her visa status. She told the Court that she has a Country B “Board of Investment” visa that entitles her to stay temporarily in Country B, but for up to two to three years. She told the Court that in that time, she can apply for a permanent residency visa. I understood that she wants to stay living in Country B and wants the children to stay with her.
I also understand the facts to be that the children were trailing on the mother’s visa in Country B until sometime last year. The mother asserts that the father has, notwithstanding the orders that provide for the children’s passports to be kept in safe custody in Country B to be released by agreement between the parties, retained possession of the children’s passports without her consent. She asserts that as the children’s visa status was about to expire, the father was taking them, or arranging for them to be taken across the border between northern Country B and Country G and obtaining new 30 day tourist visas for them on the way back into Country B, using their Australian passports that he retains possession of. The mother expressed serious concerns about the practice. Indeed, she asserted that the father actually hoped that he and the children would be denied re-entry into Country B on one of these “visa runs” (as she calls them) forcing him to have to return with them to Australia.
The mother asserted that it was her concern about this practice and the father’s non-consensual retention of the children’s passports that prompted her to stop permitting the children to spend time with the father around four months ago. Consequently, the children’s visas have expired and they are currently living in Country B in the mother’s care without valid Country B visa status. It seems clear that there is no dispute between the parties that Country B authorities are aware of this but, to date, have taken no action to detain or deport the children.
For his part, the father asserts that he retains the children’s passports because of his belief the mother is a “flight risk”, that is, that there is a real risk that she will take the children and leave Country B taking them to a third country to live, such as Country H, if she has possession of their passports. That is why he will not voluntarily hand them over to her, he claims.
The mother also asserts that the father has refused to disclose to her the details of the visa that he is currently on. Interestingly, she very frankly told the Court that she wants to know this as it has a bearing on her ability to be able to invoke the jurisdiction of a Country B Court to get some sort of Country B Court order that might assist her in these proceedings.
The father conceded that he had not revealed to the mother the visa he was on or what he was doing about his visa status, but asserted that was because of his concern that she would take steps to make representations to the Country B Government authorities to interfere with his application and prevent him from being granted the visa he seeks.
At the hearing before this Court on Monday 29 October, where both parents appeared from Country B by telephone, the father freely told the Court (and the mother) that he had applied for the same type of visa as the mother has and that he was anticipating receiving it within the next week or so.
The Mother’s adjournment application
The mother asserted that her application for these proceedings should be stayed until the father has disclosed to her his visa status. As I apprehended her submissions in support, her position is that only when she knows his actual visa status will she be able to go to the Country B Court and invoke its jurisdiction. She asserts that she has not been able to do that to this time as the Country B Court will not exercise jurisdiction if the father is only in Country B on a tourist visa, but that it will if he has a visa that permits him to live there for other purposes even if only still temporary. I note though she took me to no evidence of Country B law to support this submission.
I apprehend that she is concerned that her application for a stay of these proceedings has little prospect of success whilst she does not have proceedings underway in a Country B Court.
I will not adjourn her application for a stay of the proceedings. She filed the application seeking a stay and it was listed before me. She told the Court that she thought that filing the application would force the father to disclose his visa status. She did not seek orders in her Application in a Case for disclosure by the father. I am not persuaded that these proceedings should be adjourned now to allow her to get full disclosure of the father’s visa status, so that she may try to invoke the jurisdiction of a Country B Court just so she can give herself what she clearly believes is a better chance of successfully obtaining a permanent stay of these proceedings in this Court. I refuse and dismiss her adjournment application.
The Mother’s application for a permanent stay of these proceedings
The mother’s application is, seemingly, founded on two grounds. The first is that this Court is a clearly inappropriate forum in the sense that term is used in cases such as Voth and Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Henry v Henry (1996) 185 CLR 571; Kemeny v Kemeny (1998) FLC 92-806 and Navarro v Jurado (2010) 44 Fam LR 310. The second is that the children’s best interests demand that parenting orders proceedings take place in Country B, where they live and have been living all of their lives, or, in the case of the eldest child, for almost all of his life.
There is no doubt that this Court has jurisdiction to make parenting Orders in respect of these three children. The parents are both Australian citizens and the three children are all Australian citizens (s 69E(1)).
In respect to the “clearly inappropriate forum” argument, the authorities are clear that where there are proceedings underway in a foreign jurisdiction in respect of divorce, property and/or parenting orders arising out of the breakdown of the parties’ marriage, a party may apply to this Court for a stay of similar proceedings brought in this jurisdiction that pertain to the same subject matter. The party who commenced the proceedings here may resist that application and ask this Court to grant an anti-suit injunction against the other party, restraining him or her from taking any further steps in the foreign proceedings.
The test to be applied in determining whether to stay the local proceedings is whether or not this Court is a “clearly inappropriate forum” and the party seeking the stay of these proceedings bears the onus of establishing that it is.
This Court is to determine the question by determining whether a continuation of the proceedings in this Court would be “vexatious” in the sense discussed in Voth, namely that they would be “seriously and unfairly burdensome, prejudicial or damaging” or indeed “oppressive” in the sense also discussed in Voth, namely that they would be “…productive of serious and unjustified trouble and harassment...”.
There are a number of matters authoritatively stated to be matters properly to be taken into account when determining whether the local Court (that is, this Court) is a “clearly inappropriate forum”. In Kent & Kent (2017) FLC 93-792 the Full Court, adopting a list provided to them by Senior Counsel in that appeal, noted with approval that the following was a non-exhaustive list of such matters:
1. No question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage.
2. If both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done.
3. It will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
4. Other considerations include the order in which the proceedings were instituted.
5. Other considerations include the stage which the proceedings have reached.
6. Other considerations including the costs that have been incurred.
7. It will be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions.
8. It will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.
9. It will be relevant to consider “the general circumstances of the case”, taking into account “the true nature and full extent of the issues involved.”
(Emphasis in original)
I also note, respectfully, that Justice Kent wrote in Chen & Tan [2012] FamCA 225 at [38] the following:
Whether or not Australia is a clearly inappropriate forum depends on an assessment of the following (non-exhaustive) factors (derived from Lord Goff’s factors in Spiliada Maritime Corporation v Cansulex Ltd[1] as approved of in Voth and as added to by Henry at 592-593):
[1] [1987] AC 460.
i)Factors of convenience and expense, such as the location of witnesses;
ii)Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing;
iii)The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;
iv)Whether the other potential forum will recognise Australian Orders and vice versa and the ease of enforcement in each country;
v)Which forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy;
vi)The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;
vii)The governing law of the dispute;
viii)The place of residence of the parties;
ix)The availability of an alternative forum; and
x)Any legitimate juridical advantage to litigating in either jurisdiction.
I respectfully agree with his Honour’s observations that include acknowledgment that those are relevant factors in determining the question of whether the Australian court is a clearly inappropriate forum.
My determination on the clearly inappropriate forum argument
I respectfully reject and dismiss the mother’s stay application. There are no proceedings on foot in respect of parenting matters in any Country B court. There is no evidence that I have been taken to, that persuades me that the courts of Country B have or would exercise jurisdiction in respect of parenting matters. Indeed, the father argued that there might be some problems in that respect and the mother herself concedes that invoking the jurisdiction is conditional on the father’s Country B visa status. In any event, she has not sought to invoke it yet.
It was the mother who commenced parenting proceedings in this Court, invoking its jurisdiction. The proceedings are well under way, with a family report and a psychiatric assessment having already been prepared. The mother still seeks interim parenting orders now, whilst at the same time asking for a permanent stay. The parents and the children are all Australian citizens and English is their first language. I know nothing of the parents’ proficiency in the Country B language, such that would permit them to readily and effectively litigate in Country B.
The mother mentioned a long list of potential witnesses who she said are all in Country B, a relevant consideration. Again, without Country B proceedings underway, that argument does not assist the mother, but as I told her at the hearing, most parenting orders cases are heard and determined with few witnesses other than the parents themselves, the family report writer, the psychiatrist who has seen the parties, and perhaps a family member or two. I have no reason to suspect this parenting orders case not to be the same. In case managing this matter to trial, I would need to be persuaded that more witnesses than that were critical before I permitted it and, in any event, just as I heard the mother and the father by telephone from Country B, the availability of witnesses being cross-examined on affidavit evidence by electronic communication from Country B is not to be overlooked.
On balance, I am not persuaded that this Court is a clearly inappropriate forum and I will not stay the proceedings on that basis.
My determination on the best interests argument
As for the other limb of the mother’s submission, that it is in the best interests of the children to stay the proceedings in this Court, I am also not persuaded that is a sound basis for a permanent stay.
I am satisfied that the Court has the power to control its own proceedings and that it could permanently stay proceedings if to allow them to continue was to allow an abuse of the Court’s process. I am just not persuaded that to allow the parenting orders proceedings to continue in this Court could be in any way construed as an abuse of the process of this Court, especially when the parent wanting the stay is the parent who commenced the proceedings and still seeks parenting orders from the Court.
Does the Court have power to stay parenting orders proceedings where it is in the best interests of the children to do so? The difficulty immediately confronted in determining the answer to this question is found in s 60CC(1) of the Family Law Act 1975 (Cth). Except when the Court is making a parenting order with the consent of the parties, in determining what is in a child’s best interests, the Court must consider all of the matters set out in ss 60CC(2) and (3). Those subsections set out two primary considerations and a long list of additional considerations that are required to be considered. They could not be given proper consideration and justice would not be seen to be done, if the Court was simply to decide that because these parents and the children live in Country B and not in Australia that it is in the children’s best interests to permanently stay these Australian proceedings, in the hope that the parents can sort out their own parenting dispute or potentially get the Country B authorities to do so. I cannot see how that would be any more than a flagrant abrogation of responsibility to determine the dispute for which the Court clearly has jurisdiction and a complete disregard for what is in the best interests of these children, namely a timely resolution of their parents’ dispute about them.
I will not stay the proceedings as I do not consider it in the children’s best interests to do so. Indeed, their best interests demand that the disputation about them between their parents is determined as soon as it can be, in a Court that has jurisdiction. This is such a Court.
The Father’s application for an anti-suit injunction against the Mother
The father, in his written submissions, asserts that he seeks an anti-suit injunction to restrain the mother from commencing proceedings in Country B for property and parenting matters. He acknowledges that the mother has not commenced proceedings to this point in time, but says that she “has specifically stated she will commenced (sic) proceedings in Country B court (sic) as soon as I obtain a non-immigrant visa”.
The father told the Court that he expects to be obtaining such a visa in the near future. Accordingly, he is concerned the mother is likely to start proceedings in the Country B courts and he submits that would be “vexatious and oppressive” given that proceedings are already underway here.
I accept that the mother talked about not being able to start proceedings in a Country B court without knowing the father’s Country B visa status and I also accept that it appeared to be her desire to do so. However, by the end of the hearing before me, I formed the impression that if the mother was the beneficiary of an order that placed the children’s passports in her possession and if this Court’s Orders were to be registered in a Country B Court giving the parties access to enforceability there, that she would no longer be interested in commencing proceedings in Country B that would put that country’s courts at odds with this Court jurisdictionally.
I have determined that I will make an Order that the mother should have possession of the children’s passports and that the parties should join in taking whatever steps are necessary to register this Court’s Orders with a Country B court so that they might be enforceable in that country. Accordingly, I do not consider it necessary, at this point in time, to issue an anti-suit injunction against the mother and I will not do so. That is not to say that I would not grant such an injunction in the future if the circumstances change.
Possession of the Children’s passports
The children are living with the mother. She is unable to regularise their Country B visa status because she does not have access to their passports. If she has their passports, she should be able to ensure that they obtain visas from the Country B authorities trailing off her visa, making lawful their ongoing residence in Country B, at least for the foreseeable future.
The only reason the father advances in opposition to the mother having possession of the children’s visas is his contention that she is a flight risk, that is that she will take the children with her and flee Country B for a third country from which they cannot be retrieved. When asked to point to, or give some particulars of the evidence that he relies upon to support a finding on an interim basis that the children face an unacceptable risk of being taken by their mother to a third country from which they would not be able to be located or returned, the father referred to some old conversation in which the mother had mentioned about the possibility of the family moving to Country H.
I am not persuaded that the mother is a flight risk with the children. There was previous opportunity after these proceedings were commenced and the interim orders were made with the parties’ consent for the mother to flee to a third country with the children. It did not happen. I am satisfied, at this time, that the mother wants to continue to live in Country B with the children and that all she wants to do is regularise the children’s living status within that country. It is, in my judgment, best done, on an interim basis at least, by the mother possessing the children’s passports and having the children’s visa status trailing off hers.
I will make an order that the father deliver the children’s Australian passports to the mother as soon as practicable and that permits her to take the children outside Country B for the purposes of regularising their Country B visa status before returning them to Country B again. Until further Order, the mother will be responsible for the children’s Country B visa arrangements. Such an order was also supported by the ICL at the hearing before me.
Sole Parental Responsibility
The parents themselves agreed to parental responsibility being equally shared between them in the interim orders they asked the Court to make in 2016. The mother has now come to the Court asking for that to be changed to sole parental responsibility in her favour. She argues that such a change is necessary because of the conflict between them and their inability to communicate at all, let alone in respect of decision making about major long-term issues. She refers to numerous decisions of Judges of this Court giving such reasons for conferring sole parental responsibility on one parent or the other.
Whilst I acknowledge that the argument advanced by the mother carries considerable merit in cases where the parents are adjudged to be in such high conflict that it could not be in the children’s best interests to require, by law, their parents to jointly make decisions about major long-term issues in the children’s lives, I do not consider it appropriate at an interim hearing where there has been no opportunity to see the parties under cross-examination or actually cross-examining the other, to be changing the interim allocation of parental responsibility previously agreed upon by the parents themselves.
I also gained a sense that the mother’s application was also sourced in the conflict about possession of the children’s passports and determinations about where the children should be living. Now that issue is resolved by the Orders I will make, on an interim basis at least, I do not consider it to be required by the children’s best interests to make this significant interim change to the allocation of parental responsibility. I will not do it. The mother will not be able to unilaterally make decisions such as moving the children to live somewhere that makes it considerably more difficult for them to spend time with the father as currently provided for. Such decisions, along with decisions about their health and education will still need to be made jointly with the father, at least until the determination of the competing final parenting orders applications of the parents.
The Father’s application for week about time to recommence and for make-up time.
I also understood the mother to indicate a willingness to return to the week about parenting regime if she had possession of the children’s passports and if this Court’s Orders were enforceable in Country B through registration in a Country B Court. As for make-up time, she did not offer any serious argument against the proposition put by the ICL that the children should stay with the father for two weeks when the week about arrangement starts again. I will make such an Order that provides for that. I will also order that the father has one block of two weeks in the coming December-January school holidays that the parents told the Court about, so that, in effect, he gets another week of make-up time with the children.
Other miscellaneous matters sought by the Father
The father also seeks to have the mother reinstate compliance with orders providing for telephone calls between the father and the children at 6:00 pm Country B time each Sunday, Monday, Wednesday and Friday as agreed in the 2016 consent orders. He told the Court that the mother had been claiming that the children have things on after school on many days and that 7:00 pm would be a more convenient time for the calls.
I do not understand that 7:00 pm calls are inconvenient for the father, so as the mother apparently asserts that time is more convenient for the children (and for her) then I see no reason why the time for those calls should not simply be changed to 7:00 pm. That is what I will order.
The father wanted an order that the children again return to counselling. The ICL submitted that should not happen at this stage, before the family report writer has seen them again and before the trial of the competing final applications takes place. I am not persuaded that a return to counselling is what the children need at this point in time and I will not order it. Indeed, I will make an order that neither parent take any of the children to counselling without the agreement of the other party and the ICL or a further Order of this Court.
The father expressed dismay at not being able to attend at the school the children attend in Country B and not being able to receive any information from the school about the children. It seems the case that the mother, who had enrolled the children at the school, did not want to risk the father taking the children from the school and keeping them over the last four months. The ICL told the Court that her inquiries of the school’s administration had revealed that the school considered it bound by the direction of the parent who had enrolled the children at the school, the mother. Clearly, the mother had told the school the father was not permitted to attend the school or to be given information.
I am satisfied that the new Orders I am going to make will give the mother comfort that the father is not going to take the children and withhold them from her. As handovers are best happening at the school so that the parents do not come into physical contact with each other, I am satisfied that the father should be permitted to attend at the school. He should also be entitled to attend at the school for events that parents of students are welcome at and he should be able to get information about the children from the school that parents are entitled to receive. I will order that the mother authorise the school to permit the father onto the school premises in those circumstances and provide him with information about the children.
An updated Family Report and hearing
The ICL informed the Court that the family report writer could see the family again in March next year in order to prepare an update of the family report. Accordingly, I will make an Order that the parents and the children attend in Brisbane and upon Mr C in March 2019 at the direction of the ICL so that the updated report is able to be completed. The mother shall be responsible for bringing the children to Brisbane for that purpose as she will have the possession of the children’s passports.
The ICL told the Court that the report writer would need approximately a month to prepare and write that updated report. Accordingly, the matter should be able to be made ready for trial in late April 2019. I will reserve three days for the hearing of the competing final parenting applications in this matter on 29 and 30 April and 1 May 2019.
The matter is currently listed before a Registrar for a directions hearing on 6 December 2018. I will vacate that directions hearing, take the matter into my own docket now and list it for a trial management event early in the New Year. I will list it for trial management directions at 10.00 am Queensland time on Wednesday, 6 February 2019. The parents will each have the right to appear by telephone from Country B on that morning.
At that trial management event, the parents and the ICL will be expected to inform the Court that the matter is able to be listed for hearing on the three days that I have reserved. They will all be expected to have attended to the following matters:
·Settle a Trial Plan identifying, in the order in which they will likely be called, each witness required for cross-examination, the likely time required for each cross-examination, and the times required for any legal argument and addresses;
·Have considered the issues to be determined at trial and be in a position to settle a List of Issues in consultation with the other parties;
·Know the identity of all witnesses upon whom they wish to rely in their case, and to have already advised all other parties of their names;
·Know how long it will take to have one affidavit of evidence in chief for each witness prepared, filed and served bearing in mind the Court’s intention to list this matter into three days already mentioned;
·Know the identity of all witnesses to be called by the other parties, and be able to indicate which of those are likely to be required for cross-examination and, of course, how long such cross-examination is likely to take;
·Know if any party or any proposed witnesses, including any single expert witnesses, will not be available to attend a trial and give evidence during the said three days;
·Be in a position to inform the Court as to the identity and availability of any barrister intended to be instructed to conduct the trial during the said three days;
·Know whether it is proposed that any witnesses are to give their evidence electronically and, if so, be in a position to tell the Court what the other parties’ attitudes to such a proposal are and be ready to make submissions as to the issue if there remains disagreement;
·Know if leave is going to be sought to cause any further subpoenas to issue and be ready to make submissions in support or against such leave being granted;
·Be in a position to inform the Court of any particular directions that are to be sought to have the matter ready to proceed to trial when listed and to conclude in the days that it is listed for.
I make the Orders set out that the commencement of these written reasons.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 9 November 2018.
Associate:
Date: 9 November 2018
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