Jefferts & Chester
[2023] FedCFamC1F 40
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jefferts & Chester [2023] FedCFamC1F 40
File number(s): MLC 12584 of 2020 Judgment of: HARTNETT J Date of judgment: 8 February 2023 Catchwords: FAMILY LAW – PARENTING – Interim parenting orders – Where the father seeks the child travel overseas for a period of 16 days for a paternal relative’s birthday – Where the father seeks a passport for the child – Where the mother seeks the child stay in Australia – Where the child has never travelled internationally – Where the paternal family is of Country B heritage – Where the entirety of the paternal family, save one individual, will be travelling to Country B for the occasion – Where the child has spent time with the father since birth on a frequent and regular basis – Where orders made for travel of a lesser period of time – Where orders are made for the father to obtain a passport for the child. Legislation: Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 65AA, 65D Cases cited: Deiter v Deiter [2011] FamCAFC 82
George v George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) FLC 93-405
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 52 Date of hearing: 1 February 2023 Place: Melbourne Counsel for the Applicant: Ms Mallett SC and Mr Marchetti Solicitor for the Applicant: Schembri + McCluskys Counsel for the Respondent: Ms Taylor Solicitor for the Respondent: Keating Avery Solicitors ORDERS
MLC 12584 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JEFFERTS
Applicant
AND: MS CHESTER
Respondent
order made by:
HARTNETT J
DATE OF ORDER:
8 February 2023
THE COURT ORDERS THAT:
1.Within seven (7) days of a request by the father to the mother, the mother shall do all such acts and things and sign all such documents as may be necessary or required to obtain an Australian passport for the child, X born 2019 (“the child”), including signing and returning to the father all passport application documents and consent forms and any other associated documents that may be required AND in the event that the mother fails or refuses to comply with this Order then the father be allowed by this Order to apply pursuant to section 11 of the Australian Passports Act 2005 (Cth) to permit the renewal and/or issue of an Australian passport for the child without requiring the consent of the mother with the Court hereby being satisfied that such Order is in the child's best interests.
2.UNTIL FURTHER ORDER the father shall retain possession of the child’s passport.
3.The child is permitted to travel to Country B on or before 3 July 2023 for the purpose of a paternal relative’s birthday celebration for a period of no greater than 10 days including travel.
4.For the purpose of the 10 day travel period, the child communicate with the mother daily by FaceTime between 6.00pm and 6.30pm Country B time, the mother to initiate such communication to the father’s service.
5.Upon the child’s return, the child spend the remainder of the agreed school holiday period with the mother.
6.Following the Country B holiday with the father, the mother to have an extra three days of make-up time in the immediately next agreed school holiday period.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jefferts & Chester has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
INTRODUCTION
On 1 February 2023, the matter did not proceed to final hearing and the parties sought that the Court make interim parenting orders. The Court made orders, relevantly, by consent that:
1.Each of the parents, together with the child, [X] ("[X]"), born […] 2019, attend upon [Ms C] (“[Ms C]”) (psychologist) for the purpose of an updated private family report (“the family report”).
2. For the purpose of the family report:
a.Each of the parents provide to [Ms C], not later than 14 days prior to the scheduled appointment(s), copies of any further filed affidavit material.
b.The father be responsible and pay for the cost of the private family report.
3.The parties do all acts and things to lodge enrolment forms for [X] at [D School, Suburb E] and [F School, City G] for enrolment in 2024.
4.The matter be otherwise listed for final hearing before Justice Hartnett on 28 August 2023 at 10.00am (as a 3 day matter).
…
A remaining interim issue which the parties sought to agitate before the Court but which was not particularised in interim orders sought was whether the applicant father (“the father”) could take the parties’ child, X (“the child”), born 2019, aged three years but to be four years at the time of the proposed travel, to Country B for a period of 16 days. The purpose of the travel is to celebrate the birthday of a paternalrelative. The extended paternal family (save for one individual who was not travelling) would be in attendance. In order to undertake such travel the father sought to be permitted to obtain a passport for the child. The respondent mother’s (“the mother”) position was that such trip would not be in the child’s best interests.
BACKGROUND
The father was born in 1982 in City J, Country K and is aged 40 years. He currently resides in the former family home in Suburb H and is employed in a business owned by his family.
The mother was born in 1996 in Australia and is aged 26 years. She resides in City G with her new partner, Mr L (“Mr L”) and their daughter who is very young. She is employed as an educator.
The parties commenced their relationship in late 2017 and commenced cohabitation on the father’s evidence in late 2017. The parties were never married. The parties separated in April 2020. The child was born in 2019.
It was the mother’s evidence that in early 2020, she relocated from Melbourne to N Town, Victoria. The father’s evidence differs slightly; on his evidence, he claims the mother relocated with the child to her sister’s property near O Town.
At the time of separation, the parties implemented a four-day rotation for the child’s time with the father, at the father’s request.
On 8 September 2020, the parties participated in mediation and agreed the child would live with the mother during the week and spend time with the father on weekends. The father in late 2020, however, sought that they revert back to a four-day rotation. The mother rejected that proposal.
In late 2020, the father claims the mother provided him with a further proposal being a reduction in his time spent with the child.
A short time later, in 2020, the mother advised the father she would be ceasing time between the child and the father until age appropriate orders were in place.
Two days later, the father alleged the mother refused to bring the child to a changeover in P Town. The mother’s reasoning included that the child “needed a break”.[1]
[1] Father’s Outline of Case filed 31 January 2023, p.2.
On 13 November 2020, the father’s solicitors wrote to the mother requesting that the mother resume the child’s time spent with the father in accordance with the previous parenting agreement as reached at mediation. This agreement provided for the child to be in the father’s care on weekends.
On 17 November 2020, the father filed an Initiating Application for Final Orders in the then Family Court of Australia, now Federal Circuit and Family Court of Australia (Division 1) seeking final and interim parenting orders as well as final property orders.
On 20 November 2020, a Senior Judicial Registrar made interim parenting orders that the child live with mother and spend time with the father each alternate week, with overnight time to occur in the O Town area for two nights, and in the alternate week overnight time away from the O Town area for three nights. A total of five nights in 14. Changeover was ordered to alternate each weekend and occur at either Q Public Park, O Town or R Public Park, P Town.
In or around early 2021, the mother commenced a relationship with Mr S (“Mr S”).
On 15 March 2021, a Senior Judicial Registrar made interim parenting orders restraining the mother from moving the child’s residence more than 20 kilometres from the T School. The child’s spend time locations with the father were varied so that the two nights in one week were to occur in the U Region, and the three nights in the alternate week were not restricted to the U Region. That is, the child could spend time with the father in Melbourne. Orders were also made for the child to spend one week in the care of each parent during school holiday times. The Court notes that COVID-19 restrictions presented the parties with a number of challenges in the 2021 year.
In early 2021, the child commenced childcare at V Children's Services, O Town.
By mid-2021, the mother was no longer in a relationship with Mr S.
A short time later, in 2021, the mother commenced a relationship with Mr L.
On 25 August 2021, further interim parenting orders were made by consent. It was ordered the child live with the mother and spend time with the father each alternate week during school terms for five nights and during the school holiday period for a one week block as agreed. Further that the parties complete a post separation parenting program.
On 17 November 2021, further interim parenting orders and final property orders were made by consent. It was ordered that the child live with the mother and spend time with the father during school terms each alternate week for five nights; during the school term holidays for one week as agreed between the parties; and during the long summer holidays for two one week blocks as agreed between the parties. Changeover was to occur at a location agreed between the parties.
In 2022, whilst the child was in the mother’s care, the child attended on occasion but regularly N Town Kindergarten and V Children's Services childcare. When in the father’s care, the child attended on occasion but regularly an immersive Country K language pre-school, W School.
In early 2022, the mother purchased a home in City G.
In early 2022, the mother became engaged to Mr L and commenced full-time cohabitation with Mr L in City G.
In late 2022, the mother gave birth to a child of she and Mr L, namely M.
LEGAL PRINCIPLES
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode (2006) FLC 93-286.
In applying the law to the facts, the Court must uphold the relevant objects and principles set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”) that guide the making of orders in respect of children. Pursuant to s 65D of the Act, the Court has the power to make such parenting orders it deems proper. In doing so, the paramount consideration is the best interests of the child.[2]
[2] Family Law Act 1975 (Cth) ss 60CA, 65AA.
The objects of the Act in relation to parenting orders, as set out in s 60B of the Act, are to ensure that:
(a)children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b)children are protected from physical and psychological harm;
(c)children receive adequate and proper parenting to help them achieve their full potential; and
(d)parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
When considering what interim orders should be made the Court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts. However, the Court may, and in some circumstances must, have some regard to the matters in dispute.[3]
[3] See for example SS v AH [2010] FamCAFC 13, Deiter v Deiter [2011] FamCAFC 82, George v George [2013] FamCAFC 182.
In Deiter v Deiter [2011] FamCAFC 82, the Full Court determined that when making an interim order, a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by a child.
The Court must make orders as are in the best interests of the child as a result of a consideration of the matters set out in s 60CC of the Act.
The primary considerations, which are contained in s 60CC(2) of the Act, are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) of the Act provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents. Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[4]
[4] McCall v Clark (2009) FLC 93-405; Mazorski v Albright (2007) 37 Fam LR 518.
Further, in determining what is in the child’s best interest, the Court must consider additional considerations set out at s 60CC(3) of the Act.
Those relevant s 60CC of the Act matters have been considered by me and are included below.
CONSIDERATION
At the hearing, the father proposed that he be permitted to take the child to travel to Country B to celebrate the paternal relative’s birthday for 16 days (inclusive of travel time to and from Australia). Upon arrival in Country B, it was proposed that in mid-2023 the paternal family will gather for three days in City Y for a ‘gathering of the clan’. The paternal family will then travel to Z Region, where the family home is located, for five days to celebrate with another side of the paternal family. The paternal family will then travel to City AA for three days, return to Z Region for another two days before commencing their return home to Australia. As there are no direct flights to Country B, the trip will involve a flight to New Zealand, approximately a two hour delay, and another flight to Country B. A total of several hours together with transport to and from airports and further airport wait time.
Senior counsel for the father sought the child be permitted to accompany the father to this celebration. She submitted that the child has a broad wider family with a strong cultural heritage and thus it was important that the child attend the paternal relative’s birthday celebration. Nearly all of the paternal family, including those who reside in Country K, will be in attendance at the birthday ‘festival’.
The mother did not agree to the child travelling to Country B. Counsel for the mother submitted that the trip length, in addition to the flight time, was too long for a child of just four years of age, and noted the trip included multiple airports and crossing the international dateline. Further, the child has not spent more than a week in the father’s care since the separation of the parties, nor has she travelled internationally. It was the mother’s position that this trip is more about meeting the needs of the paternal relative, than the needs of the child. The child does not have a passport.
It is common ground that the child benefits and will continue to benefit from having a positive and meaningful relationship with both her parents. No issues of risk were raised by either party.
Both parties are involved in the long-term decision making regarding the child and care for the child’s needs. The father pays child support as assessed with the mother and step-father otherwise financially supporting the child.
The child’s BB Region culture, the paternal family being of Country B background, is supported by both parties with the father having enrolled the child in a Country K language pre-school, which the child has attended for some time. The father speaks the language of Country K with the child when she is in his care.
The untested evidence as contained in the Family Report of Dr C (“Dr C”) dated 19 July 2022 and annexed to her affidavit filed 21 November 2022, noted that the child had been “meeting all developmental milestones and that she is generally a healthy, happy child who of late, has been displaying some dysregulated behaviour, including aggression”.[5] Dr C saw the parties and child on 15 June 2022. Dr C noted that the parties demonstrated cooperative parenting, had a “seamless” changeover, and that there was good communication between the parties. In addition, Dr C noted that “the travel time between homes in not necessarily demanding for [the child] and can be a relaxed parent-child experience but the associated adjustment to her changed environment may add to her emotional and psychological load”.[6] Those environment factors were noted in the report to be the addition of a new sibling, the change in caregivers (Mr S, the mother’s former partner, to Mr L), and change in settings.
[5] Dr C affidavit filed 21 November 2022, p.10.
[6] Dr C affidavit filed 21 November 2022, p.29.
Dr C observed that the child:
…appears comfortable in both parents’ company. She remained proximal to them during observation and her behaviour appeared relaxed in their presence. She did not appear to show a particular parenting preference or indicate any separation anxiety. This would suggest a degree of security in the parent child relationship. There are no obvious risks in their parenting styles or individual functioning, and her parents were assessed as being equipped with a range of attitudes, beliefs and values that will support [X's] development. They are competent and confident parents. There is some reference in [Ms Chester’s] narrative about the primacy of [X’s] attachment to her however if [X] has been subject to a share time arrangement for the past two years, the primacy consideration is diluted, more so if [X] shows a degree of adaptive functioning in response to the interim orders.
With the mother living in City G, and the father living in Suburb H, the parties effect changeover of the child in P Town. The distance between the child’s two homes is hundreds of kilometres and the travel time by car is several hours each way. Given this arrangement, it was the father’s position that the child is used to extended periods of travel and being in the care of one parent or the other. Indeed it is not disputed that the child is adept at travelling long distances via car.
Senior counsel for the father submitted that the child has adapted well to spending time in different Airbnb’s and hotels during her time with the father in City G, which is referred to in the Family Report. Whilst that may be the case, it is accepted that generally children benefit from stability and consistency.
Dr C recommends that “each party be permitted to travel with the child interstate and overseas (from 2023 onward) for lengths of time to be agreed, and not to exceed 10 nights until the child attains the age of six years, providing appropriate notice is given and the itinerary is fully available. It is preferable this travel occurs during schedule term holiday periods. On these occasions, [X] be permitted to communicate virtually with her non-resident parent every second night”.[7]
[7] Dr C affidavit filed 21 November 2022, p.33.
CONCLUSION
In reaching a decision about what orders are in the child’s best interests, the Court must balance the relevant matters in s 60CC of the Act. A period of 16 consecutive days with her father is untested and is a significant period of time for the child who is a young child. Further, the fact that the father proposes international travel is also a significant change for the child (the child has never been away from her mother for a period of greater than a week). The child has however, a secure relationship with each of her parents and does not appear to have any separation anxiety when away from one parent.
I accept that it is in the child’s best interests that she be engaged in her Country B culture with her paternal family, however this does not outweigh the child’s other needs and interests. An engagement with her Country B culture can be experienced by the child sufficiently in accordance with the advancement of her best interests by spending a lesser period of time in Country B than that proposed by the father. The father’s travel with the child is supported by the untested Family Report for a period of up to 10 nights. Dr C is of the view however that the mother will need to provide the necessary reassurance and comfort to the child, given her age, as to such travel. I am of the view that the mother will be able to support the child in this way albeit she does not consent to the travel that will be undertaken by the child. The mother has shown herself to be well capable of promoting the child’s relationship with the father and acting in the child’s best interests.
I find that ten days including travel, is a more appropriate absence from the mother for the child given the child’s age and current spend time arrangements. I also conclude that this length of time will enable the child to spend time with her extended paternal family and engage in the Country B culture over an extended eight days of celebrations.
I will order that the child communicate with the mother daily by FaceTime between 6.00pm and 6.30pm Country B time with the mother to initiate such communication. The time difference between Melbourne and Country B is several hours. Neither party specifically addressed the Court on communication between the child and the mother during the proposed travel period. There are no current orders as to any communication between the child and the other parent. In my view, given the child’s young age and the length of time for which she will be away from her home in City G, and her mother’s presence, it is in the child’s best interests that during the proposed international travel communication between the child and mother occur daily.
Upon the child’s return, the child should spend the remainder of the holiday period with the mother. The child should then spend three extra days of make-up time with the mother in the immediately following holiday period. There appears no dispute in any event about that.
In regards to obtaining a passport, the father will be responsible for obtaining a passport for the child and at his expense. The mother shall co-operate in that process. The passport can, until further order, remain in the possession of the father.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 8 February 2023
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