HOPKIRK & HOPKIRK
[2010] FamCAFC 187
•17 September 2010
Family Court Of Australia
| HOPKIRK & HOPKIRK | [2010] FamCAFC 187 |
| FAMILY LAW - APPEAL – Where the Federal Magistrate erred in the exercise of her discretion – Whether the Federal Magistrate erred in making orders for travel for the child – Where the Federal Magistrate erred in making orders which were not supported by the evidence – Where the Federal Magistrate omitted to take into account relevant matters – Where the Federal Magistrate did not give any or any adequate reasons – Appeal Allowed FAMILY LAW - REDETERMINATION – Where all of the evidence on which the parties relied on before the Federal Magistrate is also before this court – Consideration of the best interests of the child and the travel arrangements as proposed by the parties |
| AMS v AIF; AIF v AMS (1999) 199 CLR 160 Cross v Beaumont (2008) 39 Fam LR 389 De Winter and De Winter (1979) FLC 90-605 Gronow v Gronow (1979) 144 CLR 513 House v King (1936) 55 CLR 499 Korban & Korban [2009] FamCAFC 143 Norbis v Norbis (1986) 161 CLR 513 Rollings v Rollings (2009) 230 FLR 396 |
| Family Law Act 1975 (Cth) Evidence Act1995 (Cth) |
| APPELLANT: | MS HOPKIRK |
| RESPONDENT: | MR HOPKIRK |
| FILE NUMBER: | MLC | 7678 | of | 2008 |
| APPEAL NUMBER: | SA | 2 | of | 2010 |
| DATE DELIVERED: | 17 September 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | 4 May 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 3 December 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1162 |
Representation
| COUNSEL FOR THE APPELLANT: | Ms Stoikovska |
| SOLICITOR FOR THE APPELLANT: | Marshalls & Dent |
| THE RESPONDENT: | Self-Represented |
Orders
The appeal be allowed.
Orders 16, 17, 18, 19 and 20 made by Federal Magistrate Riley on 3 December 2009 be discharged.
In respect of the child born … November 2006 of the relationship of the Mother and the Father, subject to the Mother providing the Father with 45 days written notice setting out:
(a) dates of travel;
(b) all flight arrangements;
(c) the general itinerary of where the child of the relationship will be staying overseas; and
(d) the contact details for all accommodation overseas;
orders 8, 9, 10, 11 and 12 made on 3 December 2009 be suspended for a period of 23 days in 2010 or 2011 and in each alternate year thereafter, with such time to be offset against any time provided to the Mother by orders 12(a) and 12(b) of the orders of 3 December 2009, and the Mother be entitled to remove the child from the Commonwealth of Australia so as to travel overseas with the child to visit members of the maternal family.
The Mother and the Father do all acts and things and execute all documents and writings necessary to ensure that a valid Australian passport is issued for the child at all times until the child attains the age of 18 years.
In the event a parent refuses or neglects to comply with their obligations pursuant to order 4 hereof within 21 days of being served with written notice from the other party seeking compliance with that order, an officer of the Federal Magistrates Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such document or documents as may be necessary in order to issue a valid Australian passport in the name of the child.
Save and except for a period of 7 days prior to the child’s departure from the Commonwealth of Australia with the Mother pursuant to order 3 and a period of 7 days after the child’s return to the Commonwealth of Australia the child’s passport is to remain in the possession of the Registry Manager of the joint Family Court of Australia and Federal Magistrates Court Melbourne Registry.
Within 7 days prior to the departure from the Commonwealth of Australia of the Mother with the child pursuant to order 3 hereof the Mother may collect the passport of the child from the said Registry Manager for the purposes of removing the child from the Commonwealth of Australia and Mother shall return the passport of the child to the said Registry Manager within 7 days of her return to the Commonwealth of Australia with the child.
To facilitate order 7 hereof the Mother shall provide the Registry Manager with a copy of the written notice given to the Father in accordance with order 3 hereof.
IT IS NOTED that publication of this judgment under the pseudonym Hopkirk & Hopkirk is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 2 of 2010
File Number: MLC 7678 of 2008
| MS HOPKIRK |
Appellant
And
| MR HOPKIRK |
Respondent
Reasons For Judgment
Introduction
This is an appeal by Ms Hopkirk (“the Mother”) against certain parenting orders made on 3 December 2009 by Federal Magistrate Riley in relation to a four year old child. The Respondent is Mr Hopkirk (“the Father”).
The Federal Magistrate made the following orders:
ORDERS
(1) All previous parenting orders be discharged.
ORDER BY CONSENT
(2) The mother and father have equal shared parental responsibility for [the child] born [date] 2006 (“[the child]”).
ORDERS
(3) Pursuant to section 13C(1)(a) of the Family Law Act 1975, the parents attend therapeutic family counselling to deal with their issues relating to the care of [the child], and in particular:
(a)their difficulties in communicating with each other about matters concerning [the child]; and
(b)their difficulties in cooperating with each other about matters concerning [the child].
(4) The family counselling occur at an organisation nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.
(5) The parties attend counselling at such times as are directed by the therapeutic counsellor.
(6) Each party attend such individual counselling as the therapeutic counsellor recommends at such times and at such places as the recommended individual counsellor directs.
(7) Each parent pay for their own individual counselling and for half of the joint therapeutic counselling.
(8) Until 1 January 2012:
(a)[the child] live with her mother;
(b)[the child] spend time with her father:
(i)from 5.00pm Saturday to 6.00pm Monday each alternate week;
(ii)from 7.30am to 6.00pm Monday in the other week; and
(iii)from 7.30am Thursday to 7.30am Friday each week; or
(iv)as otherwise agreed by the parents.
(9) From 1 January 2012 until 31 December 2012:
(a)[the child] live with her mother;
(b)[the child] spend time with her father:
(i)from 3.30pm each alternate Thursday to 6.00pm the following Sunday; and
(ii)from 3.30pm each alternate Thursday to 9.00am the following Friday;
(c)[the child] spend half school holidays with each parent by agreement and, in default of agreement, from the end of school until the midpoint of the holidays with the mother in odd numbered years and with the father in even numbered years; or
(d)as otherwise agreed by the parents.
(10) From 1 January 2013:
(a)[the child] live with her mother;
(b)[the child] spend time with her father:
(i)from 3.30pm each alternate Thursday to 9.00am the following Monday; and
(ii)from 3.30pm each alternate Thursday to 9.00am the following Friday;
(c)[the child] spend half school holidays with each parent by agreement and, in default of agreement, from the end of school until the midpoint of the holidays with the mother in odd numbered years and with the father in even numbered years; or
(d)as otherwise agreed by the parents.
(11) Notwithstanding the foregoing:
(a)for the purposes of celebrating [the child]’s birthday:
(i)in 2009 and alternate years thereafter, [the child] spend from 8.00am until 6.00pm (subject to any kindergarten/school attendances) on her birthday with her mother;
(ii)in 2010 and alternate years thereafter, [the child] spend from 8.00am until 6.00pm (subject to any kindergarten/school attendances) on her birthday with her father;
(b)for the purposes of celebrating either the father’s or the mother’s birthdays, [the child] shall spend time with the parent on their birthday from 8.00am until 6.00pm (subject to any kindergarten/school attendances);
(c)for the purposes of celebrating Christmas:
(i)in 2009 and alternate years thereafter, [the child] spend from 9.00am Christmas Eve until 9.00am Christmas Day with the father and from 9.00am Christmas Day until 9.00am Boxing Day with the mother;
(ii)in 2010 and alternate years thereafter, [the child] spend from 9.00am Christmas Eve until 9.00am Christmas Day with the mother and from 9.00am Christmas Day until 9.00am Boxing Day with the father;
(d)for the purposes of celebrating Mother’s Day, [the child] spend time with the mother from 6.00pm on the Saturday preceding Mother’s Day until 6.00pm on Mother’s Day;
(e)for the purposes of celebrating Father’s Day, [the child] shall spend time with the father from 6.00pm on the Saturday preceding Father’s Day until 6.00pm on Father’s Day.
(12) Notwithstanding the foregoing:
(a)when [the child] is three years old, she may spend three holidays of five days each with each of her parents at times to be agreed and in default of agreement:
(i)with the father for five days commencing at 6.00pm on the Friday before the first Saturday that [the child] would be due to spend with her father during the Victorian school term holidays; and
(ii)with the mother for five days commencing at 6.00pm on the Monday during the Victorian school term holidays that [the child] will not be on holiday with her father; and
(b)when [the child] is four years old, she may spend three holidays of seven days each with each of her parents at times to be agreed and in default of agreement:
(i)with the father for seven days commencing at 6.00pm on the Friday before the first Saturday that [the child] would be due to spend with her father during the Victorian school term holidays; and
(ii)with the mother for seven days commencing at 6.00pm on the previous or subsequent Friday such that [the child] will be on holiday with her mother during the other week of the Victorian school term holidays.
(13) Changeover occur at [the child]’s child care or school where practicable and otherwise at the father's home unless he moves more than five kilometres from his current address when changeovers not at [the child]’s childcare or school are to occur at the mother’s home.
(14) If [the child] will not be spending a night at a parent’s home, the relevant parent notify the other in writing seven days in advance of:
(a)the address and contact details of the place where [the child] will be staying;
(b)the details of the flight or other means of transportation to the place where [the child] will be staying.
(15) If [the child] is to be away from a parent for more than seven days, the other parent is to ensure that [the child] speaks to the first parent by telephone at least once each week.
(16) The mother within seven days ensure that [the child]’s passport is delivered to the Registrar of this court who is requested to hold [the child]’s passport until further order.
(17) Until further order, the father and his servants and agents are restrained from removing or attempting to remove [the child] from the Commonwealth of Australia.
(18) Until further order, the mother and her servants and agents are restrained from removing or attempting to remove [the child] from the Commonwealth of Australia.
(19) The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain [the child]’s name on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain [the child]’s name on the airport watch list until further order of the court.
(20) The father, at the request of the mother, from time to time, sign all necessary documents to enable [the child] to have a valid Australian passport.
(21) Except for the purposes of changeover in accordance with order 13 hereof, the father be restrained from knowingly being within 100 metres of the mother’s home without her prior consent in writing.
(22) The father and the mother consult each other prior to enrolling [the child] in any organised activity during the time [the child] spends with them.
(23) If a parent thereafter enrols [the child] into an organised activity, such parent provide the other parent with all contact information, confirmation of enrolment and dates and times for the activity, and ensure the other parent is fully apprised of all the activities [the child] is undertaking with each parent from time to time.
(24) Save for in emergencies, both parents continue to facilitate [the child] attending [M Medical Centre] for all general practitioner consultations.
(25) [The child]’s immunisation books and any other medical records remain in the possession of the mother and the mother continue to be responsible for arranging all of [the child]’s immunisations, maternal and child health check ups and any other routine medical appointments.
(26) For the purposes of this process, the mother is to arrange all such appointments and thereafter she is to promptly notify the father of the appointment details.
(27) The father is at liberty to attend the arranged appointments with the mother and [the child] should he wish to do so.
(28) In the event that [the child] requires medical care or becomes seriously ill or injured whilst in the care of either parent, such parent shall ensure the other parent is notified forthwith and facilitate the other parent communicating with [the child]’s treating health provider.
(29) Unless the parties otherwise agree, [the child] be enrolled in [T] Childcare kindergarten and she commence attending 3 year old kindergarten at the commencement of Term 1, 2010.
(30) The father and the mother be at liberty to provide a copy of these orders to the manager or principal of any childcare centre, kindergarten or school attended by [the child] from time to time.
(31) Subject to the discretion of the manger or principal, and subject to each parent being responsible for meeting any associated costs, the father and the mother be at liberty to:
(a)receive copies of all childcare/kindergarten/school reports, notices, newsletters and like correspondence customarily provided to parents; and
(b)attend all childcare/kindergarten/school concerts, functions, parent teacher interviews and any other events customarily attended by parents.
(32) Until such time as the parents otherwise agree in writing, the parents are to continue using a communication book for the purposes of communicating brief factual messages in respect of the issues concerning [the child]’s care, welfare and development.
(33) The communication book is to be passed over with [the child] at changeover and the communication is to include, but not be limited to, details of the following:
(a)the sleep that [the child] had that day;
(b)the meals [the child] has had and when they last occurred;
(c)any special child activity [the child] has undertaken during her time with each parent;
(d)details of any symptoms if a parent suspects [the child] may be unwell; and
(e)toilet training progress notes.
(34) In the event that either parent moves residence or his or her contact details vary, that parent forthwith notify the other parent in writing (when practicable at least 14 days prior to the change occurring) of any variation to his or her residential address, mobile telephone number or email address.
(35) The father and the mother each be readily contactable to the other parent, by ensuring his or her mobile telephone remains charged where practicable and promptly returning any messages that may be left by the other parent from time to time.
(36) The father, the mother and his and her servants and agents are restrained from:
(a)harassing, verbally abusing, denigrating or threatening the other parent; and
(b)discussing the making of these orders or future care arrangements for [the child];
in the sight, hearing or presence of [the child].
AND THE COURT NOTES THAT:
Pursuant to ss.62B and 65DA(2) 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 Attachment A and these particulars are included in these orders.
The Mother is appealing against orders 16, 17, 18 and 19.
If her appeal is successful the Mother seeks the following orders:
1. That subject to the wife providing the husband with 45 days written notice, setting out dates of travel, all flight arrangements, the general itinerary of where [the child] will be staying and the contact details for all accommodation, the wife be permitted to suspend paragraphs 8, 9, 10, 11 and 12 of the final orders delivered on 3 December 2009, for 3 consecutive weeks in 2010 and each alternate year thereafter (with such time to be offset against any time provided to the wife in paragraphs 12(a) and 12(b) of the final orders delivered on 3 December 2009) to enable the wife to travel overseas with [the child] to visit family.
2. In the event that the husband and wife intend to travel with [the child] outside the State of Victoria during periods of time [the child] is scheduled to spend time with them, the parent intending to travel is to provide the other parent with at least 14 days notice in writing, including in such notice details of:
(a)if applicable, the flight arrangements; and
(b)the general itinerary of where [the child] will be staying and the contact details for all accommodation; and
(c)Upon [the child] attaining the age of 5 years, proposals for how [the child] will contact and speak with the non travelling parent (once weekly) during such holiday.
3. In the event that the husband and the wife intend to travel with [the child] outside the Commonwealth of Australia during periods of time [the child] is scheduled to spend time with them, the parent intending to travel is to provide the other parent with at least 45 days notice in writing, including in such notice details of:
(a)If applicable, the flight arrangements; and
(b)The general itinerary for where [the child] will be staying and the contact details for all accommodation; and
(c)Upon [the child] attaining the age of 5 years, proposals for how [the child] will contact and speak with the non travelling parent (once weekly) during such holiday.
4. That save and except for the period from 72 hours prior to [the child]’s departure until 72 hours after [the child]’s return from any agreed travel pursuant to paragraphs 2 and 4 herein, [the child]’s passport is to remain in the possession of the wife.
5. That the husband and the wife shall sign all documents and do all acts and things necessary to ensure that a valid Australian Passport is issued for [the child] at all times until [the child] attains the age of 18.
6. In the event a parent refuses or neglects to comply with their obligations pursuant to paragraph 6 herein within 21 days of being served with written notice from the other party seeking compliance with that order, an officer of the Court be appointed to execute such document or documents as may be necessary in order to issue a valid Australian Passport in the name of [the child] pursuant to section 106A of the Family Law Act 1975.
The orders sought by the Mother are consistent with what she sought at the hearing before the Federal Magistrate. However, she had sought that the first overseas trip occur in 2009.
During discussion before me it was agreed that there are three and perhaps four categories of orders.
The first category is reflected in order 1 and is intended to make provision for the Mother to travel with the child to the United Kingdom every second year for a period of three weeks. The maternal family reside in the United Kingdom.
The second category is reflected in order 2 and is intended to provide for the circumstance where the Father and the Mother may travel outside Victoria but within the Commonwealth of Australia. This order was not dealt with in the written submissions of the Mother.
The third category is reflected in order 3 and is intended to provide for the circumstance where during a period of time when the child is residing with a parent that parent may travel with the child outside the Commonwealth of Australia.
In relation to this third category, during the hearing before me, I was informed that this order was not the Mother’s “primary concern” although it would, for example, enable the Father to take the child overseas for a holiday. The Mother never asserted that if the Father took the child overseas for a holiday he would not return the child to Australia. Nor was it ever suggested that if the Mother took the child overseas for a holiday she would not return the child to Australia (Transcript, 4 May 2010, p 37).
There is perhaps a fourth category being orders 4, 5 and 6 which relate to the passport of the child.
I also understood that the requirements of notice reflected in orders 2 and 3 would also apply in relation to order 1.
On 11 February 2010 an order was made by the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that it was appropriate that the jurisdiction of the Family Court in relation to the appeal be exercised by a single judge.
The Mother was represented by counsel and the Father appeared without legal representation. I had the benefit of written submissions from both parties. However, I observe that the written submissions of the Father were extensive and comprised 133 paragraphs.
BACKGROUND
The Father was born in Europe in 1969 and moved to Australia with his family when he was about five years of age. The Mother was born in the United Kingdom in 1977.
The parties met overseas in July 2000 while they were both backpacking alone. The Mother arrived in Australia in August 2000 and the parties began living together in Melbourne in September 2000.
Between 20 August 2001 and 19 December 2001 the parties travelled overseas.
In February 2002 the Mother was granted a temporary visa to remain in Australia.
In June 2002 the Mother commenced permanent paid employment in Australia.
The parties were married in England in May 2003 and shortly after they were married they returned to Melbourne to live.
In April 2004 the Mother became a permanent resident of Australia.
The parties separated between August and November 2005 but reconciled.
The child was born in November 2006.
In February 2008 the family moved to the Sunshine Coast in Queensland, where the paternal grandparents live. Ms D, who is a psychologist and social worker, was appointed as a Family Consultant and she prepared a report which was in evidence before the Federal Magistrate. The Family Consultant recorded that the Father said that the family moved to Queensland to be closer to the paternal grandparents.
Between 30 March and 17 April 2008 the Mother and the child went to England to visit the maternal family. I observe that during the hearing before the Federal Magistrate, the Mother testified that her grandfather was ill and he died on the day the Mother returned to Australia (Transcript, 11 August 2009, p 132).
I observe that there was no evidence from the Father about any impact of this overseas trip on the child. There was however evidence from the Mother.
I also observe that before the Federal Magistrate, the evidence of the Mother was that she believed that the Father was reluctant for the Mother to travel overseas at that time as the parties relationship was deteriorating. The Father told the Mother that he was worried that she would not return (Transcript, 11 August 2009, p 117).
On 8 May 2008 the parties separated permanently.
On 30 May 2008 the Mother travelled to Melbourne to establish a home. The Federal Magistrate observed at [5] that the child, who was then about 18 months old, spent some time in the care of the Father.
On 5 June 2008 the child and the Mother returned to Melbourne to live.
On or about 21 June 2008 the Mother prepared a roster whereby the child would spend each Sunday, Monday and Tuesday with the Father, and each Wednesday, Thursday, Friday and Saturday with the Mother. The roster also provided for the child to be in childcare on Tuesday, which she would otherwise spend with the Father, and on Thursday, which she would otherwise spend with the Mother. The Federal Magistrate observed at [7] that the arrangement was short lived. The Mother said that initially she had been inclined to have a more or less equal shared care arrangement for the child but she then discovered that such an arrangement was not suitable in view of the child’s developmental stage.
On 9 July 2008 the Father returned to Melbourne to live.
On 22 August 2008 the Father filed in the Family Court an application for final orders in which he sought equal shared care of the child. However, the Father sought no orders in relation to the parties being prevented from removing the child from the Commonwealth of Australia.
On 17 September 2008 the Mother filed a response to an application for final orders, and a response to an application in a case, and essentially she sought that the child live with her and spend defined time with the Father each week. The Mother also sought orders in relation to overseas travel. In relation to overseas travel, the Mother sought:
7. That during the Wife’s period of annual leave in each year she be permitted to take the child to England for four weeks with the Wife to provide four weeks written notice of her intentions to travel to the Husband.
8. That both parties be permitted to take the child on a trip outside of Victoria/Australia provided written consent of the other is obtained and the party proposing the travel provide the other with contact details and a copy of the child’s itinerary as soon as practicable prior to the travel occurring.
9. That the child’s passport be delivered to Kenna Teasdale Solicitors to the Wife and the Wife have safe custody of the passport to be delivered to the Husband prior to any agreed overseas travel by the Husband and subsequently returned to the Wife.
The Mother swore a very extensive affidavit on 17 September 2008.
The Family Consultant recorded that the Mother wished to continue to visit England. The Mother’s parents separated when the Mother was 14 years of age. Both the Mother’s parents have re-partnered. The maternal grandmother lives in C and the maternal grandfather lives in G. The Mother has a half sister and a half brother. The Mother also has “friends in different parts of England” (Transcript, 11 August 2009, p 121).
On 25 September 2008 the Father filed an amended application in a case in which he sought a number of orders including an order that both parties consent to the child “being registered at all points of international departure and that [the child] not leave Australia”.
In support of this application for interim orders the Father swore an affidavit on 26 September 2008. In paragraphs 104 – 107 the Father dealt with “international travel”. A great deal of what the Father said was inadmissible if by reason of s 69ZT(3) of the Act the provisions of the Evidence Act1995 (Cth) were applied. What the Father said was largely comprised of contentions. For example, in paragraph 106 of his affidavit the Father contended:
I fear that if [the child] be allowed to leave Australia it is certain that the Wife will not return her. I understand that treaties are in place with England but I know that the Wife’s family have the means and the strong desire to exhaust all avenues prior to [the child] being able to be returned. I am also aware that the Wife has many friends in Europe with whom she would be welcomed to stay as well as her father having a home in France.
On 30 September 2008 the matter came before a Senior Registrar, who noted that the Father was a police officer who worked on Wednesday, Friday and Saturday of each week, while the Mother worked as an executive assistant on Monday, Tuesday and Thursday of each week.
On 30 September 2008 the Senior Registrar made an interim order, by consent, for joint parental responsibility. Then after a contested hearing, the Senior Registrar made interim orders that the child live with the Mother and spend time with the Father from 9.00 am each Sunday to before childcare each Tuesday, when the Father was to take the child directly to the childcare centre. An order was also made that the child and her parents attend upon a family consultant for an assessment.
On 6 October 2008 the Mother swore an affidavit. The Mother replied to what the Father said in his affidavit of 26 September 2008 and in particular at paragraphs 88 to 91 replied to the contentions of the Father about overseas travel.
In her affidavit the Mother contended that no member of her family has made a house available to her in England and that she never said that she would leave Australia to go to England. The Mother contended that she never said that she wished to live in England with the child and that she made it perfectly clear to the Father that she considers Melbourne to be her home and that she wished to travel to England for no more than four weeks each year. The Mother said she never made any attempt to apply for a British passport for the child. Further, the Mother said that she never stated that she would remove the child from Australia for any purpose other than a holiday.
On 7 November 2008 an assessment was prepared by Mr A, after observing the child interacting with each of her parents. Mr A noted various matters which the Federal Magistrate set out in her reasons at [13]. The Federal Magistrate observed at [14]:
In other words, [Mr A] made the observation that is frequently made by experts and frequently ignored by parents, namely, that parental conflict can be extremely damaging for the proper emotional and psychological development of young children. It is a sad fact that a few parents who are otherwise self-sacrificing and devoted persist in conflicts over issues that, regardless of how they are resolved, will have a marginal influence on their children's emotional and psychological development while the parental conflict itself may cause devastating harm to their greatly loved children.
On 11 November 2008 the matter came before a Senior Registrar. The Federal Magistrate observed at [15] that at that stage, it appeared that the Father had not been delivering the child to childcare at about 9.00 am each Tuesday, but had been delivering her at about 3.00 pm, just in time for the Mother to collect her. The Mother had been telephoned on occasion by the childcare centre to say that the child had not arrived and the Mother had been unaware that the child had been with the Father.
The Senior Registrar made what the Federal Magistrate described at [16] as “a number of fairly standard orders by consent”. The orders provided that the child's time with the Father conclude at 9.00 am each Tuesday, rather than before childcare as the previous orders had stated and the child spend from 8.00 am to 5.45 pm each Thursday with the Father, instead of spending that time in childcare. The Federal Magistrate observed at [17] that the net effect of the orders was that the child would spend Tuesday but not Thursday in childcare; would spend time with the Father from 9.00 am each Sunday to 9.00 am each Tuesday and from 8.00 am to 5.45 pm each Thursday and at other times would live with the Mother.
On 20 November 2008 the proceedings in the Family Court were transferred to the Federal Magistrates Court
In December 2007 the maternal grandmother and the maternal step-grandfather came to Australia for a short period and again in December 2008. In December 2008 the Father made allegations of inappropriate behaviour by the maternal step-grandfather towards the child. The Father took proceedings in a Magistrates Court and those proceedings were dismissed with costs. The Federal Magistrate dealt with what happened at [66] to [68] and found that the Father “made a very serious and unfounded allegation” against the maternal step-grandfather.
On 6 January 2008 an order was made, by consent, that the child’s passport be held by Marshalls & Dent, solicitors for the Mother, and not be released without the written consent of both parents or a court order. The Father was represented by solicitors until about one month before the final hearing.
On 27 July 2009 an affidavit was sworn by the Family Consultant to which was attached a copy of her report.
On 3 August 2009 an amended response was filed by the Mother in which at paragraphs 6 to 12 she sought orders in relation to holidays, time overseas and a passport for the child. The Mother wished to visit her family in England. The Mother sought the following order:
7. That subject to the wife providing the husband with 45 days written notice, setting out dates of travel, all flight arrangements, the general itinerary of where [the child] would be staying and the contact details for all accommodation, the wife be permitted to suspend paragraphs 3, 4, 5 and 6 herein, for 3 consecutive weeks in 2009 and each alternate year thereafter (with such time to be offset against any time provided to the wife in paragraphs 6(a), 6(b) and 6(c) herein) to enable her to travel overseas with [the child] to visit family.
In paragraph 8 of her amended response the Mother sought an order in relation to each of the Father and the Mother being able to travel with the child outside the State of Victoria. In paragraph 9 the Mother sought an order to enable each of the Father and the Mother to travel outside the Commonwealth of Australia with the child during periods of time when the child was scheduled to spend time with each parent. In paragraphs 10, 11 and 12 the Mother sought orders in relation to the passport of the child.
On 3 August 2009 an affidavit was sworn by the Mother. In paragraphs 8, 13, 59(d) and 59(e) the Mother gave evidence about overseas travel.
The hearing before the Federal Magistrate occurred on 10, 11 and 12 August 2009. The Father appeared without legal representation.
As to the proposals of the parties, the Federal Magistrate said:
20. In summary, [the child]'s parents agreed that they should have equal shared parental responsibility for her and that [the child] should live with her mother, at least for the time being.
21. Otherwise the father sought orders that [the child] spend time with him:
a)each alternate Sunday from 9am to Wednesday at 8am;
b)each alternate Monday from 8am to Wednesday at 8am; and
c)each Thursday from 3pm to 6pm.
This amounts to five nights each fortnight and one afternoon each Thursday. The father's proposal would mean that [the child] would spend time in childcare one day per week, on Thursdays, until 3pm.
22. The mother sought orders that [the child] spend time with her father:
a)each alternate Saturday from 5pm until Monday at 6pm;
b)each alternate Monday from 7.30am until 6pm; and
c)each Thursday from 3.30pm until 6pm.
This means [the child] would spend with her father two nights each fortnight plus all day each Monday and one afternoon each Thursday. The mother's proposal would mean that [the child] would spend two days each week in childcare, although on the Thursday she would be picked up at 3.30pm.
23. In addition, the father proposed that, once [the child] starts school, she be cared for by both of her parents equally. The mother opposed that order on the grounds that it was too early to say what would be suitable for [the child] when she starts school.
24. The father proposed that changeovers take place at childcare or at his home. The mother proposed that changeover occur at [the child]'s kindergarten or school where practicable and otherwise at the father's home unless he moved more than five kilometres from his current address when changeover should occur at the mother’s home.
25. The father sought an order that [the child] be permitted to travel to Queensland to visit her paternal grandparents each alternate month between 8am Saturday and 8am Tuesday upon the father giving the mother 14 days notice of departure and arrival times and the contact address and telephone number in Queensland. The mother opposed this order, saying it was an attempt to gain additional time by stealth.
26. The mother proposed that each parent be able to have three holidays with [the child] of five nights when she was three years old, and of seven nights when she was four years old. Upon [the child] commencing school, the mother proposed that she spend half school holidays with each parent.
27. The father proposed that [the child] be prohibited from leaving Australia and that he keep her passport. The mother proposed that she be permitted to travel overseas with [the child] in 2009 and each alternate year thereafter to visit her family for three weeks. The mother proposed that she should retain [the child]'s passport, that the parties should be required to sign all documents to ensure that [the child] has a valid Australian passport at all times until she is 18 years old, and that the Registrar of the Court be appointed to execute the necessary documents if the father or mother refused or neglected to sign them.
28. The father sought orders that the parties be required to attend joint therapeutic counselling until they and the counsellor agree that they are able to successfully co-parent [the child] with the cost of the counselling to be borne equally by the parties. The mother opposed that order.
29. The father sought that any orders be reviewed in 12 months time. The mother opposed that order.
30. The mother sought numerous other orders of a detailed nature, most of which the father did not oppose. Those proposed orders are addressed further below.
The Federal Magistrate observed:
39. [Ms D] recommended that [the child] live primarily with one parent and that parent be the mother. [Ms D] recommended that [the child] spend time with her father frequently and with minimal intervals. More particularly, [Ms D] recommended that [the child] spend time with her father:
a)from 4 or 5pm on alternate Saturdays, or, if that did not suit the father, from 9am on alternate Sundays, to about 6pm on the following Monday;
b)on the other Monday from the morning until 6pm or, if the father were willing to take [the child] to childcare on Tuesday, until 6pm the following Tuesday; and
c)each Thursday or each alternate Thursday from say 3.30pm to 6pm.
This recommendation amounts to a minimum of one night a fortnight to a maximum of three nights a fortnight plus each Thursday for two and a half hours. [Ms D] said that the arrangement she proposed lent itself to a transition to alternate weekends once [the child] started school.
The Federal Magistrate said at [31] that the Father relied on his affidavits sworn on 22 August 2008, 25 September 2008 and 6 November 2008. During discussion with the Federal Magistrate on 10 August 2009, the Father said that he sought to rely on all affidavits that he had filed, which included those filed in support of interim applications. In fact all of the Husband’s affidavits had been filed for the purposes of interim applications. The Husband failed to file, as he was directed to, an affidavit setting out his evidence in chief for the purposes of the hearing of the applications for final orders (Transcript, 10 August 2009, p 16 – 19). The Father also made clear that he sought to rely upon a written case outline document filed on 5 August 2009.
The Mother relied on her affidavit sworn on 3 August 2009. This affidavit was filed pursuant to a direction for the filing of affidavits for the purposes of the hearing of the applications for final orders.
The Mother complains that the Federal Magistrate allowed the Father to rely on the affidavits he filed for the purposes of interim applications and the Mother had prepared her case on the basis of the evidence that was to be filed for the purposes of the hearing of the applications for final orders.
On 10 August 2009 the Father gave evidence in chief and he was asked by the Federal Magistrate if he sought leave to give any additional evidence and he replied “No, your Honour” (Transcript, 10 August 2009, p 19).
On 11 August 2009 the Father was cross-examined about the orders sought by the Mother. The Father complained about the age of the child. He complained that the child was too young to be travelling for three weeks at a time overseas and further that he was concerned that she would be travelling “all over the country”. Further, that the child would be away for a period of three weeks, during which she would not see the Father. The Father however admitted that the Mother has siblings, nephews and nieces who live in England (Transcript, 11 August 2009, pp 105-106).
On 11 August 2009 the Mother was cross-examined by the Father and during her cross-examination she gave evidence that during the trip overseas in 2008 the child “coped fine. She settled fine when she got to England. She enjoyed her time with her maternal family” (Transcript, 11 August 2009, p 121). The Mother also gave evidence that she did “not plan on dragging the child” from one end of the country to the other (Transcript, 11 August 2009, p 122).
I observe that it was not put to the Mother in cross-examination that if she travelled to England there was a risk that she would not return to Australia. Before me the Mother complains that any issue about what was described as “flight risk” was not raised by the Father during the hearing before the Federal Magistrate, when the Mother would have had the opportunity to deal with such an issue, and was only raised by the Father during the appeal proceedings.
On 12 August 2009 both parties cross-examined the Family Consultant (Transcript, 12 August 2009, pp 2 – 28).
In the family report the Family Consultant said “that the core of the difficulties in implementing a weekly or fortnightly routine for [the child] is the continuing problematic nature of the parties’ relationship”. The Family Consultant also observed that “the relationship is impacting negatively on [the parents] ability to achieve a co-operative, co-parenting relationship”. The Family Consultant recommended that the child reside in the primary care of the Mother and there be a block period of time for the child with the Father, “with minimal intervals and frequent time”.
I observe that no questions were put to the Family Consultant in relation to the proposals of the Mother for overseas travel.
The Federal Magistrate did observe at [34]:
[Ms D] considered that [the child]'s behaviour with each parent was unremarkable, in that she seemed to enjoy a close and affectionate relationship with both parents. [Ms D] observed that the mother and father were both attentive and affectionate towards [the child]. [Ms D] considered that [the child] was confident and content with each of her parents. [Ms D] considered that the fact that [the child] was able to readily separate from both of her parents indicated that she enjoyed a secure relationship with both of them.
At the conclusion of the hearing, the Federal Magistrate made directions for filing written submissions. Written submissions were filed on behalf of the Mother on 24 August 2009 and 19 November 2009. Written submissions were filed on behalf of the Father on 31 August 2009 and 18 November 2009.
During the hearing before me I was informed by counsel for the Mother that the Father also filed written submissions on 31 August 2009 (Transcript, 4 May 2010, p 14). It was submitted on behalf of the Mother that the Father dealt with the age of the child and “the possible strenuous nature of travel and so forth” but did not contend that “flight risk is a cause of concern for him” (Transcript, 4 May 2010, p 15).
During the hearing before me I was informed, and accept, that in the Mother’s written submissions filed on 24 August 2009 the concerns of the Father expressed in his previous submissions were addressed about the child leaving Australia and the Father retaining custody of the child’s passport. It was submitted that the only issues that were addressed were those that the Father had raised during the trial before the Federal Magistrate and the only time there was a reference to a concern by the Father about the Mother not returning was in his response during the appeal before me.
In the submissions of the Mother it was said:
9. The Husband seeks an order that [the child] be prohibited from leaving Australia and that he retain custody of her passport. The Husband’s concern that [the child] is ‘too young’ to travel to England is unfounded and not borne out by the evidence. [The child] has already been overseas last April with no evidence led by the husband that this impacted on her in any particular way. Moreover, the Husband was complimentary of the mother’s parenting when speaking to [the Family Consultant]. Therefore, he and the Court can have confidence that the wife’s proposed travel with [the child] is likely to be of the type that will take into account [the child’s] needs. In any event, the wife seeks to travel in each alternate year and including in her time away, aggregated holiday time due to her as provided for in the detail orders she seeks. Also, given it is the Wife that contemplates overseas travel with [the child], and the Husband has not alleged that she would misuse it to travel without prior notice to him, it is more practical that the Wife retains [the child’s] passport. The Husband does not explain why he should hold the passport.
10. The Husband’s desire to travel to Queensland with [the child] three nights every alternate month. It is the Husband’s evidence in his affidavits and in cross-examination that his parents travel to Victoria “regularly”. Further the proposed orders of the Wife provide for graduated holiday time with the Husband three times per year, prior to [the child] commencing school and half of school holidays thereafter. He may spend any or all of that time in Queensland if he chooses. In the circumstances, there is no reason why the Husband would also acquire additional time every alternate month to travel to Queensland. It is submitted that this may be a backdoor method to achieve more time than is recommended by the single expert.
On 3 December 2009 the Federal Magistrate pronounced judgment.
On 31 December 2009 the Mother filed a notice of appeal.
On 23 February 2010 the matter was listed before me and I made procedural orders to prepare for the hearing.
On 31 March 2010 the Mother filed an amended notice of appeal, summary of argument, list of authorities and list of documents she was seeking to rely upon, and also the transcript of the hearing before Federal Magistrate.
During the hearing before me the Father complained that he had not been served with the material of the Mother in compliance with the orders made on 23 February 2010. I was informed by counsel for the Mother, and it was not controversial, that the documents were filed on 31 March 2010 in accordance with my orders. However, the documents were retained by the Registry until 1 April 2010 and on that day they were served on the Father. In other words, service on the Father was one day out of time. In my view, there was no basis for any complaint by the Father and no prejudice was occasioned to him.
On 16 April 2010 the Father filed an affidavit and included in this affidavit was his summary of argument; list of authorities; list of documents; and relevant parts of the transcript relied upon by him.
Reasons Of The Federal Magistrate
Given that the Mother is not appealing all of the orders made by the Federal Magistrate I do not propose to deal with all of what her Honour said in her reasons for judgment.
The Federal Magistrate at [75] to [91] made a number of observations about the relationship of the parties and the standard of communication and cooperation between them. What her Honour said included:
75. It is obviously of the utmost importance for [the child] that her parents are able to communicate and cooperate with each other about basic aspects of her care. [The child] is not quite three years old. She is at an age where a stable routine is very important for her comfort and proper development. [The child] needs her parents to be able to communicate with each other about her sleeping patterns, her progression to sleeping in a bed, the approach to her toilet training, any issues concerning her health and a myriad of other details about [the child]'s daily life. Sadly for [the child], her parents so far have had a poor standard of communication about matters of great significance to her.
76. The mother said that the father frequently refused to engage in any discussion. I accept that claim. It seems to me to be consistent with the father’s presentation in court.
…
88. The father acknowledged in his oral evidence that he and the mother did not get along. He said he was trying to establish communication and lack of conflict but felt constantly impeded by the mother. For her part, the mother said that she felt bullied and intimidated by the father.
89. It is rare for problems with communication and cooperation to be entirely the fault of one party. Neither parent in this case seems to fully appreciate that [the child] needs them both to be more yielding, and to focus on her needs rather than their own positions. Above all, [the child] needs her parents to be able to communicate and cooperate with each other.
90. It seems to me that the father and mother are both very determined to have their own way. They are able to portray their wishes in terms of [the child]’s best interests, but, in reality, they just want the other parent to fall into line. They are both willing to use underhand methods to achieve their goals.
91. The father needs to understand that, while it is perfectly legitimate for him to seek to persuade others of the benefits of his point of view, it is completely unacceptable for him to try to force his views on others.
The Family Consultant observed that the parental relationship was not a good one with both parties describing it in essentially negative terms. In her report the Family Consultant made a number of observations about the parties and their relationship.
The Federal Magistrate made findings in relation to the primary considerations in s 60CC(2) of the Act.
In relation to s 60CC(2)(a) of the Act, the Federal Magistrate found at [107]: “There is no doubt that [the child] benefits from having a meaningful relationship with both of her parents. They are both devoted to [the child] and, except for their difficulties in communicating and cooperating with each other, have all of the appropriate skills for caring for a young child”.
In relation to s 60CC(2)(b) of the Act, the Federal Magistrate found at [108] that there is no suggestion that either parent would subject the child to abuse, neglect or family violence. However, her Honour did find that “the very poor standard of communication and cooperation between the parents could result in [the child] suffering psychological harm in the long term”.
The Federal Magistrate made a number of findings in relation to the additional considerations in s 60CC(3) of the Act.
In relation to s 60CC(3)(a) of the Act, the Federal Magistrate at [109] found: “Given [the child]’s very tender age, she has not articulated any views”.
In relation to s 60CC(3)(b) of the Act, the Federal Magistrate at [110] found: “[The child] has a good relationship with each of her parents. The father has some family in Melbourne and parents in Queensland with whom [the child] spends time. The mother's family live in England. [The child] has spent time with them as well. It appears that [the child] has good relationships with all of her extended family” (emphasis added).
In relation to s 60CC(3)(c) of the Act, the Federal Magistrate at [111] found: “Both parents seem to recognise the importance for [the child] of her having a close and continuing relationship with her other parent. However, the mother wishes to restrict the time that [the child] spends with her father, ostensibly to give [the child] a more settled routine”.
In relation to s 60CC(3)(d) of the Act, the Federal Magistrate found:
112. The various proposals before the court would not result in [the child] being separated from either parent or anyone else. The proposals of the parties differ in matters of degree. The most contested variable is whether [the child] should spend Tuesdays in childcare or with her father. In the absence of any expert evidence, it is difficult to say what the likely effect would be of a change in that regard. An eventual increase to equal time with her father is likely to deepen [the child]’s relationship with him without diminishing her relationship with her mother.
In relation to s 60CC(3)(e) of the Act, the Federal Magistrate at [113] found: “There is no particular practical difficulty or expense in [the child] spending time with each of her parents. They live within about 10 minutes’ drive of each other”.
In relation to s 60CC(3)(f) of the Act, the Federal Magistrate at [114] found: “Both parents are well able to provide for [the child]'s needs, including her emotional and intellectual needs, except her need to have two parents who are able to communicate courteously and constructively with each other, and parent her in a cooperative manner”.
In relation to s 60CC(3)(g) of the Act, the Federal Magistrate at [115] found: “There is nothing to note in relation to this matter”. In relation to s 60CC(3)(h) of the Act the Federal Magistrate at [116] found: “This factor does not apply in this case”.
In relation to s 60CC(3)(i) of the Act, the Federal Magistrate found:
117. In most respects, both parents have demonstrated an admirable attitude to the responsibilities of parenthood. However, neither parent appears to accept that their responsibilities as parents include communicating with each other courteously and constructively and cooperating with each other in relation to their parenting of [the child].
118. The mother also questions the father’s attitude to his responsibility to financially support [the child], given that the father works only part time. The medical evidence showed that, as at 22 May 2008, the father was deemed to be fit to work only 48 hours per fortnight and to perform different duties to those he had previously performed. The medical evidence also indicated that carrying out general duties in the long term would be detrimental to the father’s health. However, the father conceded that he had no medical reason at present to work only part time, and had no medical reason as at January 2009 to work only part time. He said he was working part time at that stage to care for [the child].
119. The reality is that mothers also have a responsibility to financially support their children. The mother also works only part time. It seems to me that where part time work provides adequate financial support for the children concerned, it may be an entirely responsible choice for one or both parents to work only part time.
120. The father maintains, and it does not seem to have been disputed, that he has paid the assessed amount of child support. However, there have been a number of proceedings to determine the correct level of child support. That litigation has added to the conflict between the parents. (emphasis added)
121. This was not a child support case, and the various issues that are considered in child support matters were not thoroughly addressed in this proceeding. Accordingly, I am not able to form the view that either parent has been remiss in his or her financial support of [the child].
In relation to s 60CC(3)(j) of the Act, the Federal Magistrate at [122] found that “This matter has been addressed previously”. In relation to s 60CC(3)(k) the Federal Magistrate at [123] found: “There is no such order in this case”. The Federal Magistrate at [124] and [125] dealt with s 60CC(3)(l).
In relation to s 60CC(3)(m) of the Act, the Federal Magistrate at [126] found: “Except for the matters stated elsewhere, there are no other relevant facts or circumstances”.
The Federal Magistrate, at [127] to [128], dealt with s 60CC(4) and s 60CC(4A) of the Act
In relation to s 61DA of the Act, the Federal Magistrate at [130] observed: “The parents agree in this case that they should have equal shared parental responsibility for [the child]. I accept that it is in [the child]'s best interests that her parents should have equal shared parental responsibility for her. There will be an order accordingly”. .
The Federal Magistrate at [131] to [155] dealt with s 61DAA of the Act.
The Federal Magistrate at [156] to [158] dealt with special occasions and changeover of the child from the care of one parent to the other.
The Federal Magistrate at [159] to [161] dealt with travel to Queensland and other short holidays. Her Honour at [163] and [165] dealt with travel overseas. Her Honour at [164], [166] and [167] dealt with the passport of the child.
The Federal Magistrate at [168] to [173] dealt with other topics which it is not necessary for me to consider.
I observe that the only discussion by the Federal Magistrate of the orders sought by the Mother in relation to overseas travel was at [163] and [165]. Her Honour did not address these orders when dealing with the relevant statutory considerations.
Relevant Principles
This is an appeal from a discretionary judgment and the principles to be applied by me are well established: see House v The King (1936) 55 CLR 499; De Winter and De Winter (1979) FLC 90-605; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513; AMS v AIF; AIF v AMS (1999) 199 CLR 160; Cross v Beaumont (2008) 39 Fam LR 389; and Korban & Korban [2009] FamCAFC 143 (13 August 2009).
In determining an appeal in respect of a decision involving a discretionary judgment, there is a strong presumption in favour of the correctness of the decision. Before an appellate court reverses a decision of a trial judge founded upon the exercise of a judicial discretion, it must be satisfied that the trial judge was plainly wrong so that his or her decision was no exercise of the discretion. In House v King Dixon, Evatt and McTiernan JJ said at 504-505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Gronow Stephen J said at 519:
While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
As to the requirement to provide adequate reasons for judgment in Rollings v Rollings (2009) 230 FLR 396 the Full Court (Boland, O’Ryan & Murphy JJ) observed at 411 to 413:
55. As to reasons for decision, in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 McHugh JA (as he then was) at 277 said that “[i]t is only comparatively recently that the common law has had to concern itself with whether the failure of a judicial tribunal to give reasons constitutes an error of law” and thereafter at 277-278 his Honour traced the development of the jurisdiction that a failure to give reasons is an error of law. He concluded that “it is no longer correct to say that a judge has no duty to give reasons unless there is a right of appeal” and referred with approval to the decision of Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 who at 386 said that although the requirement to give reasons should not be limited to cases where there is an appeal “the requirement should be seen as an incident of the judicial process”. In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Gibbs CJ at 667 said that it is no doubt correct to describe the requirement to give reasons as an “incident of the judicial process” but “subject to the qualification that it is a normal but not a universal incident”.
56. In Soulemezis McHugh JA also dealt with the “basis of the rule” and at 279 said that the giving of reasons serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted and the basis of the decision. Second, it furthers judicial accountability. Third, it affords a basis for predicting how like cases might be decided in the future. As Chernov JA observed in Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall PtyLtd [2001] 4 VR 28 at [18], in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Meagher JA at 441 added a fourth purpose being that it enables “an appeal court to determine whether the trial judge’s verdict was or was not based on an error of law or an appealable error”.
57. We do not propose to comprehensively analyse the significant body of cases that have dealt with issues regarding the duty to give reasons and the extent of the duty: see for example Pettitt v Dunkley [1971] 1 NSWLR 376; Sun Alliance Insurance Ltd v Massoud [1989] VR 8 and Bennett and Bennett (1991) FLC 92-191. As Kirby J said in Palmer v Clarke (1989) 19 NSWLR 158 at 170 “[v]iews differ concerning the precise content of the judicial duty to state reasons. There are various formulations…”. It is sufficient for present purposes to briefly refer to some relevant matters. Reasons are not required “for every decision made by a judicial tribunal”: Soulemezis per McHugh JA at 279. In Tatmar Pastoral Mahoney JA at 386 said “[i]n determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should … be had to the function to be served by the giving of reasons”. However as McHugh JA in Soulemezis at 279 said, “when the decision constitutes what is in fact or in substance a final order, the case must be exceptional for a judge not to have a duty to state reasons”. So also where reasons are necessary for parties to exercise rights of appeal, the court is obliged to give them: Carlson v King (1947) 64 WN (NSW) 65 per Jordan CJ at 66; Osmond per Gibbs CJ at 666 and Tatmar Pastoral per Mahoney JA at 386. As Chernov JA (with whom Charles and Vincent JJA agreed) in Fletcher Construction observed at [18] “It may be accepted that, ordinarily, a judge is obliged to give reasons for the decision on a substantive matter, particularly where failure to do so would frustrate or inhibit a right of appeal”.
58. So also the extent of the duty to give reasons depends on the nature of the particular decision, the circumstances in which it is made and the purpose that the reasons are intended to serve. In Beale Meagher JA, at 442 when dealing with “[t]he content of an adequate statement of reasons” referred with approval to what Samuels JA said in Mifsud v Campbell (1991) 21 NSWLR 725 at 728 and what McHugh JA said in Soulemezis at 281 and at 443 said:
It follows, that reasons need not necessarily be lengthy or elaborate: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN (NSW) 34 at 36. The scope of the reasons to be given is, as Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [citation omitted], related “to the function to be served by the giving of reasons”. Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required.
59. In the result the extent of the duty is not capable of precise definition. The content of the reasons depends on the particular circumstances of the matter being considered. Further, “the fact that the function of the requirement [to give reasons] is, at least in part, to allow a party to exercise appeal rights is of significance in determining the extent of the duty and what will be a discharge of it”: Tatmar Pastoral per Mahoney JA at 386.
60. As to what should be contained in reasons in Beale Meagher JA at 443-44 said that there are “three fundamental elements of a statement of reasons”. First, refer to the relevant evidence. Second, “set out any material findings of fact and any conclusions or ultimate findings of fact reached”. Third, in relation to the critical disputed issues of fact and law “provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found”. Meagher JA then at 444 observed that the “reasons or the process of reasoning should be understandable and preferably logical as well”. Importantly, if there is a right of appeal then the reasons should be sufficient to enable an appellate court to determine the precise findings of fact and law upon which the judgment is based: Pettitt v Dunkley and McCarroll v Fitzmaurice [1979] 2 NSWLR 100.
61. There are however some limits on the extent of the duty to give reasons. In Tatmar Pastoral Mahoney JA at 385 said that the duty of a trial judge to state reasons for a decision “does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument”. His Honour also at 386 said: “Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize … each of the factual matters to which he has had regard [or] … make an explicit finding on each disputed piece of evidence”. However, his Honour made clear that despite the above, it is of course necessary that the essential grounds upon which the decision rests should be articulated so that it is clear to an appeal court the reasoning upon which the decision is based: see also at 280 per McHugh JA and Yorta v State of Victoria (2001) 110 FCR 244 at 295 [203] per Branson and Katz JJ.
62. It is also necessary to bear in mind what Heydon J said in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. In that case the primary judge granted an interlocutory injunction restraining the broadcasting of a documentary pending the determination of defamation proceedings two clear days before the proposed broadcast. The hearing occurred in circumstances of urgency over two days and the transcript comprised over 100 pages. At the end of the hearing judgment was reserved until 2.15 pm the following day. Heydon J observed that the reasons were “neither short nor perfunctory” and said (at 185):
… This was an appropriately speedy response to the exigencies created by the manoeuvring of the parties. But speed can come at a price - a necessary and reasonable price. Seeming infelicities or obscurities or confusions in a reserved judgment pondered for some time might be regarded as signs of error. They ought to receive a more benevolent construction, if that is reasonably available, when they appear in a judgment produced under the pressure of the circumstances just outlined.
(Emphasis added.)
See also Andresakis & Skouteris v Alexus Holdings Pty Ltd (2006) 68 NSWLR 507 per McColl JA (Giles and Hodgson JJA agreeing) and Dicosta v Dicosta [2008] FamCAFC 161 per Full Court (Finn, Coleman and Thackray JJ).
Grounds Of Appeal
Introduction
In the amended notice of appeal there are only two grounds of appeal.
In ground 1 it is contended that the Federal Magistrate “erred in the exercise of her discretion and/or, at law, by making orders which were not supported by the evidence or were against the weight of the evidence or omitted to take into account relevant matters”.
In ground 2 it is contended that the Federal Magistrate gave no, or inadequate, reasons from which can be discerned either expressly or by implication, the path by which her Honour concluded:
(i) [The child's] passport should be held by the Registrar;
(ii) There should be a general restraint on removing [the child] from the Commonwealth of Australia, except with consent of [the Father] or order of the Court and that she be placed on the watch list;
(iii) It is premature to seek a default order for the signing of passport documents in the event [the Father] does not.
Relevant findings of the Federal Magistrate
In relation to travel outside Victoria but within the Commonwealth of Australia the Federal Magistrate said:
159. The father sought orders that [the child] be permitted to travel to Queensland to visit her paternal grandparents each alternate month from 8am Saturday to 8am Tuesday on 14 days notice. The mother opposed that order on the grounds that it was seeking extra time by stealth. However, the mother proposed that when [the child] is three, she be permitted to travel with each parent for three separate periods of five days and when she is four, she be permitted to travel with each parent for three separate periods of seven days on 28 days notice.
160. The parents did not explain why they thought one proposal was better than the other. I consider that it is in [the child]’s best interests that she spends time with her paternal grandparents and that she spends time on holiday with each of her parents. The durations proposed by the mother seem to me to be age appropriate for [the child]. I consider that the father’s proposal is a little too frequent and disruptive. The holiday with each parent should be largely in what would otherwise have been their time.
161. I do not consider that the parents in this case should be given freedom to choose when they will holiday with [the child]. I consider that there is a real risk that each of the parents would abuse that privilege. I consider that it is in [the child]’s best interests that her holidays with each parent be by agreement or be at set times, such as the Victorian school holidays. It also seems to me to be appropriate that each parent knows where [the child] is when she will not be staying at the other parent’s home and knows how [the child] will be travelling. I accept the mother’s proposal that there should be weekly telephone contact during holidays. There will be orders accordingly. (emphasis added)
In relation to what the Mother sought in relation to overseas travel the Federal Magistrate said:
163. In general terms, it is in [the child]’s best interests that she be able to visit her maternal family in England. However, I do not consider that it is in [the child]’s best interests for her mother to have carte blanche to take [the child] out of the jurisdiction whenever she chooses. Proposals for overseas travel need to be considered in the light of the circumstances prevailing at the time and in the light of the details of the proposed travel. The mother said that she has a job and a mortgage in Australia but she has not specified the dates or places of proposed travel. Her application is vague. I do not consider that it is in [the child]’s best interests to accede to it in its present form. If the mother wishes to make a further application at any time with proper details, she may do so.
…
165. In view of the mother’s substantial connections with an overseas location, I consider that it is in [the child]’s best interests that both of her parents be restrained from removing her from the Commonwealth of Australia except with an order of the court, which may of course be obtained by consent.
It was submitted on behalf of the Mother that the Federal Magistrate at [163], having found that it was “in general terms” in the child's best interest to “be able to visit her maternal family in England”, concluded that it was not in the child's best interest for the Mother to have “carte blanche” to take the child out of the jurisdiction whenever the Mother chooses; that the Mother's application was “vague” as to dates and places of travel; and at [165], that “in view of the mother's substantial connection with an overseas location”, it was in the child's best interest that the parents be restrained from removing her from Australia without consent of the other, or orders of the Court thus implying the Mother was a flight risk.
In relation to what the Mother sought in relation to the passport of the child the Federal Magistrate said:
164. The mother and father each sought an order that she or he be able to keep possession of [the child]’s passport. I do not consider either of these proposals to be in [the child]’s best interests. It would be preferable for [the child]’s passport to be held by the Registrar of this court, unless the court orders that [the child] may travel overseas for a particular period. Such an order may of course be made by consent.
…
166. The mother also sought an order that each parent sign all such documents and do all such acts and things necessary to ensure that [the child] has a valid Australian passport at all times. It seems that it is likely to be the mother who would want [the child] to have a passport. There are certain costs involved and certain steps need to be taken that do not simply require the giving of permission and the signing of documents. I consider that it is in [the child]’s best interests that she does have a valid Australian passport whenever she is going to travel overseas. However, I consider that the proposed order needs to be recast to fit with the realities of the process.
167. The mother also sought an order that, in the event a parent defaulted in his or her obligations regarding the passport, an officer of the court be authorised to sign for the defaulting parent. I consider that it is premature to make such an order, especially as it would remain on foot for 15 years. If the need arises, the appropriate application should be made. (emphasis added)
Discussion
The Federal Magistrate made an order that the parties have equal shared parental responsibility for the child. As I have observed, in her reasons, her Honour said that she accepted that it was in the child’s best interests that her parents should have equal shared parental responsibility for the child. In other words, although her Honour did not say so, she must have been satisfied that the presumption of equal shared parental responsibility for the child applied and had not been rebutted.
If an order is made that the parents are to share parental responsibility for a child, and the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child, then s 65DAC(2) of the Act provides that the order is taken to require the decision to be made jointly by those persons. Section 65DAC(3) provides that the order is taken to require each of those persons to consult the other person in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue.
Section 4 of the Act defines “major long-term issues” in relation to a child to mean issues about the care, welfare and development of the child of a long-term nature and includes, but is not limited to, issues of that nature about the child’s education, both current and future; and the child's religious and cultural upbringing; and the child's health; and the child's name; and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
In other words, when considering whether or not the presumption of equal shared parental responsibility for a child has been rebutted it would be necessary to be satisfied, having regard to the findings in relation to the considerations in s 60CC of the Act, that the parents were able to consult and make a genuine effort to come to a joint decision about a long term issue.
The considerations in s 60CC of the Act include s 60CC(3)(l) which requires consideration as to whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to a child. In relation to this statutory consideration the Federal Magistrate said:
124. Generally, it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings in relation to a child. That is because litigation is stressful and disruptive for all concerned and often does not achieve the desired outcome. However, it is not clear in the present case what order would be the least likely to lead to further litigation. Accordingly, it is not possible to determine whether it would be preferable to make that order.
125. Having said that, the mother submitted that no orders should be made about when [the child] starts school, on the grounds that it was too early to say what her needs would be at that time. That could be said in all children’s matters, because it is in their nature to develop and change with every passing day. It seems to me that, to some extent, it would be preferable to make orders to deal with the arrangements for [the child] as she grows, to minimise the prospect of further proceedings between the parties. They have already engaged in more than enough litigation. (emphasis added)
The Federal Magistrate was obviously concerned about litigation between the parents because when dealing with the consideration in s 60CC(3)(i) of the Act she said at [120]: “That litigation has added to the conflict between the parents”.
In her reasons, the Federal Magistrate made clear that she was aware of the difficulties in the relationship of the parents. I have already observed what her Honour said at [75] to [92] about the standard of communication and cooperation between the parents. I have already observed that in relation to the primary consideration in s 60CC(2)(b) of the Act her Honour said at [108]:
However, the parents acknowledged that their communication and cooperation were inadequate. They have major difficulty speaking to each other in a courteous and constructive way. While each blamed the other, we all know that relationships are two way. Sadly, the very poor standard of communication and cooperation between the parents could result in [the child] suffering psychological harm in the long term. (emphasis added)
I observe that her Honour made similar findings about the relationship of the parents when she dealt with the considerations in ss 60CC(2)(a); 60CC(3)(f); and 60CC(3)(i) of the Act.
There was also the unchallenged evidence of the Family Consultant which included what the Federal Magistrate set out at [38] namely: “Currently the necessary level of cooperation, the shared values and ideas, are not present. The nature of the parental relationship does not lend itself to sharing of information. As such, [the child] is likely to experience a lack of follow through and consistency, a lack of reliability, and lack of predictability of routine across the two households”.
There was a preponderance of evidence that there is significant conflict between the parents that could result in psychological harm to the child.
Then when consideration is given to the orders made by the Federal Magistrate I first observe that there are 36 orders and the first adjudicated order, being order 3, requires the parents to attend therapeutic family counselling to deal with their issues relating to the care of the child, and in particular their difficulties in communicating with each other about matters concerning the child; and their difficulties in cooperating with each other about matters concerning the child.
Without analysing each of the 36 orders, I observe that order 24 provides that save for in emergencies, both parents continue to facilitate [the child] attending an identified medical practice for all general practitioner consultations. This may fall within the definition of a long term issue.
However, notwithstanding the above, there is no issue before me as to whether it was in the best interests of the child that the parents have equal shared parental responsibility. What is before me is a complaint about a regime of orders which include orders that require these parties to confer and reach agreement if the Mother seeks to take the child for a short period to the United Kingdom, in circumstances where the evidence, the findings and the orders made, clearly establish that the parents are unlikely to reach any agreement and thus there would be further litigation and a perpetuation of conflict. I observe that orders 16 and 17 are expressed to be “until further order”.
Ground 1
In relation to ground 1 it was submitted on behalf of the Mother that “at no time during the trial did [the Father], expressly or by inference, suggest his opposition to [the child’s] travel overseas was based on … any fear, real or apprehended, that [the Mother] would not return [the child] to Australia, i.e. she constituted a flight risk; [or] any inadequacy of the notice and the terms and conditions for travel set out in the orders proposed by” the Mother.
It was submitted on behalf of the Mother that the Father’s opposition to travel by the child was because the child is too young to travel; the child would not understand why she is not seeing her father for three weeks; and any travel within the United Kingdom would be too onerous for her.
It was submitted on behalf of the Mother that she gave evidence in response to these assertions of the Father and he led no evidence to the contrary. The Father made an assertion about the alleged effects of travel on the child but gave no evidence on oath to this effect and thus the submission went beyond the evidence.
It was submitted on behalf of the Mother that no question as to overseas travel was put to the Family Consultant. The evidence of the Family Consultant as to the child's confident relationship with both parents was however, noted by the Federal Magistrate.
It was submitted on behalf of the Mother that at [110] the Federal Magistrate made findings that the child has a good relationship with each of her parents; the child spends some time with her paternal grandparents in Queensland; the Mother's family live in England and the child has spent time with them; and the child has a good relationship with all of her extended family.
It was submitted on behalf of the Mother that the Federal Magistrate made findings on the issue of overseas travel at [162] to [167] and nowhere did her Honour make any findings in respect of the matters referred to above.
It was submitted on behalf of the Mother that the Federal Magistrate’s comment about the Mother having “carte blanche” to take the child out of Australia, was not supported by either the oral evidence, nor the orders sought by the Mother. It was submitted that the orders sought by the Mother were generally specific as to timing being every two years and provided for adequate notice to the Father. It was submitted that the orders sought by the Mother were “tailored to take an aggregate of [the Mother]'s proposed annual holiday time with [the child] and not unreasonably impact on [the Father]’s actual time”. It was submitted that the Father “made no criticism or objection to these aspects of the orders sought” and the Father’s objection, “simply put”, was that the child is too young for three week overseas travel. It was submitted that her Honour made no finding on this aspect, either expressly or by inference. It was submitted that her Honour’s reasons are “silent as to the form of orders proposed, and, on the face of it appear not to have taken them into account at all”.
In relation to the Federal Magistrate’s comment at [163] that the application was “vague”, the Mother referred to the orders sought in her amended response, particularly paragraphs 7 to 12 inclusive; and the evidence of the Mother during the hearing, including her Honour's exchange with counsel for the Mother on this issue (Transcript, 11 August 2009, pp 105-106). It was submitted that “[h]er Honour's exercise of discretion is against the weight of the evidence that was before Her Honour, or, did not take into account these relevant matters”.
It was submitted on behalf of the Mother that in relation to the Federal Magistrate stating at [165] that the Mother had “substantial connections with an overseas location” and thus ordering that the child be placed on the airport watch list, by implication her Honour was stating that the Mother is a flight risk and “that fact, of itself, cannot constitute a risk”.
It was submitted on behalf of the Mother that the only evidence was that she has an entrenched life in Australia; is a permanent resident of Australia; has been living in Melbourne since 2000 save for two months in 2008; continues to be employed by the same employer since 2002; is paying off her home in Australia; and in 2008 returned to Australia with the child when the marriage was failing, shortly before the final separation.
It was submitted on behalf of the Mother that this evidence was unchallenged in any way by the Father. It was submitted that there was no evidence to infer the Mother would not return the child to Australia and that “the weight of the evidence is to the contrary. [The Father] never alleged this as a concern for him. Her Honour made no findings of credit against [the Mother] on these facts. Her Honour omitted to take into account these relevant matters’’.
Conclusion – Ground 1
I agree with the submissions of the Mother. I accept that when consideration is given to what the Federal Magistrate said at [163] and [165], and the evidence, that her Honour made orders that were not supported by the evidence; were against the weight of the evidence; and omitted to take into account relevant matters. In my view, the complaint in ground 1 has been established.
The Father only raised issues relating to the young age of the child and her comfort during any period overseas and those matters were addressed by the Mother. The Mother gave evidence in relation to the effect on the child of the trip in 2008. The Federal Magistrate however in her reasons did not address any of those concerns of the Father nor the evidence of the Mother. For example, the Federal Magistrate in her reasons did not say whether or not she agreed with the contentions of the Father that the child was too young to travel or that the travel would be too arduous for the child, or that the Mother would be travelling “all over the place”. In any event, her Honour had found that the Mother was able to care for the child and there was no evidence to suggest that the Mother would not adequately care for the child in the event that she took the child to the United Kingdom.
As to the finding by the Federal Magistrate at [165] that in view of the “mother’s substantial connections with an overseas location” it was in the best interests of the child that both parties be restrained from removing the child from the Commonwealth of Australia except with an order, as I have already observed, it was never put to the Mother that there may be a risk that she would not return. It was also never raised with the Family Consultant. Further, although her Honour made a fleeting reference at [163] that the Mother “has a job and a mortgage in Australia”, all of the evidence that demonstrated why there was no risk that the Mother would not return was not addressed by her Honour. This evidence included what happened in 2008; that the Mother has an entrenched life in Australia; that the Mother is a permanent resident of Australia; that the Mother has been living in Melbourne since 2000 save for two months in 2008; that the Mother continues to be employed by the same employer since 2002; and that the Mother is paying off her home in Australia.
I am also of the view that in the event that the Mother ever seeks to travel overseas there is a concern that there would be further litigation because of the absence of any ability on the part of the parents to be able to communicate and reach agreement. In my view, in the circumstances of this case, her Honour should have dealt with the additional consideration in s 60CC(3)(l) of the Act when considering the orders in relation to overseas travel given the high level of conflict between the parents and her concern about further litigation.
I also observe that the Federal Magistrate failed to deal with the application by the Mother that she could take the child to the United Kingdom in 2009.
Ground 2
In relation to ground 2 the Mother repeated a number of the submissions made in relation to ground 1. The Mother also submitted that “based on the evidence related to the likely overseas travel, the Federal Magistrate found [at [166]]: ‘It seems that it is likely to be the mother who would want [the child] to have a passport”. It was submitted that: “Given that was Her Honour's finding, no reason [was] given as to why the [the Mother] should suffer the inconvenience of the passport being held by the Registrar”.
In relation to Ground 2(iii) it was submitted on behalf of the Mother that the Federal Magistrate at [75], [90], [107] and [108] “made findings that the parents were unable to communicate courteously and constructively with each other, and parent their child in a cooperative manner”. The Mother submitted that her Honour “did make order 20, requiring [the Father] to sign documents to enable [the child] to have a valid Australia passport” and “in light of the findings Her Honour did make about the paucity of the parties ability to act co-operatively, no adequate reason is given as to why the default order sought is ‘premature’”.
The Mother submitted: “While reasons do not need to be extensive, it is respectfully submitted Her Honour has reached conclusions related to the issue of travel with the provision of next to no reasons”.
Conclusion – Ground 2
I am also satisfied that the Federal Magistrate failed to give adequate reasons both in relation to the orders she made with respect to overseas travel and also the orders with respect to the passport of the child. There are a number of examples.
The Federal Magistrate never adequately explained what she meant by the finding that it was not in the child’s best interests for the Mother to have “carte blanche” to take the child out Australia whenever she chooses. The Mother was not seeking full or unconditional authority to take the child overseas.
The Federal Magistrate never adequately explained why she was of the view that the Mother’s application was “vague”. Her Honour did say that the Mother had not “specified the dates or places of proposed travel”. However the order sought by the Mother provided that she was required to provide the Father with written particulars of dates of travel, flight arrangements, where the child would be staying and contact details for all accommodation. Further such particulars had to be provided 45 days prior to departure which would provide the Father with the opportunity to raise any issues. None of these matters were addressed by her Honour.
The Federal Magistrate also never adequately explained why simply because the Mother was born and lived in the United Kingdom, and has family and friends who live there, it was in the child’s best interests that both of her parents be restrained from removing her from the Commonwealth of Australia except with an order of the court and that the child be placed on the airport watch list. Her Honour did not consider the provisions of subdivision E of Pt VII of the Act and in particular s 65Y.
Conclusion
I propose to allow the appeal in so far as the Mother complains that the Federal Magistrate failed to make orders that would enable the Mother to travel with the child to the United Kingdom in each alternate year for a period of three weeks. I also propose to allow the appeal of the Mother in so far as she complains that her Honour did not make orders in relation to a passport for the child so as to enable the child to leave Australia and travel to the United Kingdom.
I do not propose to allow the appeal in so far as the Mother complains that the Federal Magistrate failed to make orders that in the event that either parent intends to travel with the child outside of Victoria during periods of time the child is scheduled to spend time with them, the parent intending to travel is to provide the other parent with at least 14 days notice in writing, including details of the flight arrangements, the general itinerary of where the child will be staying and the contact details for all accommodation; and upon the child attaining the age of five years, proposals for how the child will contact and speak with the non travelling parent, once weekly, during such holiday. No submissions were made to me in relation to this category of relief.
Further, I observe that the orders made by the Federal Magistrate do not prevent either parent taking the child outside Victoria during periods when the child is in his or her care and order 14 provides that if the child will not be spending a night at a parent’s home, the relevant parent has to notify the other in writing, seven days in advance, of the address and contact details of the place where the child will be staying and the details of the flight or other means of transportation to the place where the child will be staying.
I also do not propose to allow the appeal in so far as the Mother complains that the Federal Magistrate failed to make orders that would enable each parent to take the child outside Australia during periods of time the child is scheduled to spend time with them. This is what I have earlier described as the third category of orders and as I have also observed, during the hearing I was informed that this order was not the Mother’s “primary concern”. No submissions were made in relation to this category. It follows however that the Father is prevented from removing the child from the Commonwealth of Australia.
Redetermination
On behalf of the Mother it was submitted that I should re-exercise the discretion because there is sufficient material before me to do so. The Father did not challenge any of the findings of the Federal Magistrate about the relationship of the child with both of her parents.
The Father submitted that the matter should be remitted for redetermination because the orders sought “need to be clarified” and “there’s certainly been discussion about details not being addressed through the initial hearing” (Transcript, 4 May 2010, p 47).
I propose to re-exercise the discretion. All of the evidence on which the parties relied was before the Federal Magistrate and is also before me. I also observe that pursuant to the directions I made on 23 February 2010 the parties had an opportunity to put any further evidence before me.
In the circumstances of this case, I am satisfied that it is in the best interests of the child that she have the opportunity to accompany her mother to the United Kingdom in each alternate year commencing in 2010 or 2011 for three consecutive weeks. Given that the Mother had sought to travel overseas in 2009 she will have the choice of either first travelling in 2010 or commencing in 2011. This will enable the child to meet and spend time with members of the maternal family. The Father did not put in issue the finding of the Federal Magistrate at [110] that the child has a good relationship with “all of her extended family” which must include some of the maternal family. It will also enable the child to spend time in a country which is an important part of her background and heritage. This was not dealt with by her Honour.
I have no doubt that during the short period the child is in the United Kingdom with her mother that the child will be adequately cared for by the Mother. The Father did not put in issue the finding of the Federal Magistrate at [114] that the Mother is “well able to provide for [the child]’s needs”. The Father also did not put in issue the finding of the Federal Magistrate at [117] that the Mother has “demonstrated an admirable attitude to the responsibilities of parenthood”. There were other relevant findings made by her Honour such as the finding at [132] that the parents agreed that the child “should live with her mother, at least for now”.
I am also of the view that a period of approximately three weeks during which the child will not see the Father will not have an effect on the relationship of the child and the Father.
The Mother will be required to provide the Father with 45 days written notice, setting out dates of travel, all flight arrangements, the general itinerary of where the child will be staying and the contact details for all accommodation. Thus all relevant arrangements will be known to the Father.
I am also not persuaded that there is a risk that the Mother will not return the child to Australia at the conclusion of the period the child was in the United Kingdom. I observe that the United Kingdom is a signatory to the Convention on the Civil Aspects of International Child Abduction.
I am going to discharge orders 16, 17, 18, 19 and 20 made by the Federal Magistrate on 3 December 2009.
I am going to suspend orders 8, 9, 10, 11 and 12 made on 3 December 2009 for a period of 23 days in 2010 or 2011 and in each alternate year thereafter, with such time to be offset against any time provided to the Mother by orders 12(a) and 12(b) of the orders of 3 December 2009, and that the Mother be entitled to remove the child from the Commonwealth of Australia so as to travel overseas with the child to visit members of the maternal family. I propose to allow the Mother to be absent from Australia with the child for a period of 23 days because there will be some time spent travelling and there should be the opportunity for three weeks in the United Kingdom.
I am going to make orders that enable a passport to be obtained for the child and that save and except for a period of seven days prior to the child’s departure from Australia with the Mother and a period of seven days after the child’s return to Australia the child’s passport remain in the possession of the Registry Manager of the joint Family Court of Australia and Federal Magistrates Court Melbourne Registry.
I certify that the preceding one-hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan delivered on 17 September 2010.
Associate:
Date:17 September 2010
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