Keles and Keles

[2016] FamCA 1106

FAMILY COURT OF AUSTRALIA

KELES & KELES [2016] FamCA 1106

FAMILY LAW – CHILDREN – Where the parties agreed to consent orders on the final day of the final hearing – Where the only issues for determination are spend time with arrangements and overseas travel – Where the parties agree that the children should spend equal time with each parent but cannot agree how that should be structured  – Where it is in the best interests of the children for the number of changeovers per week to be reduced – Orders made for the children to spend time with each parent on a week-about basis – Where the Court finds it appropriate for the parties to pay a security when seeking to travel to non-Hague Convention countries with the children – Orders made for a security in the sum of $20 000 to be paid.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65AA, 65DAA

Line & Line (1997) FLC 92-729
Sukova & Allen [2011] FamCA 340

APPLICANT: Ms Keles

RESPONDENT: Mr Keles

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Campbelltown Family Law

FILE NUMBER: PAC 2820 of 2014

DATE DELIVERED: 21 December 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: McClelland J

HEARING DATE: 22 - 25 November 2016 and by way of written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Jones of Executive Legal Pty Ltd

SOLICITOR FOR THE RESPONDENT: Mr Harb of Harb Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

Orders

1. The children, F born … 2004 and E born … 2007, live with the parents on a week-about basis as follows:

1.1.with the father from after school Friday (or 3.00 pm if not a school day) in the first week until after school Friday (or 3.00 pm if not a school day) the following Friday; and

1.2.with the mother from after school Friday (or 3.00 pm if not a school day) in the second week until after school the following  Friday (or 3.00 pm if not a school day).

1. The children shall spend NSW school holiday time with each of their parents as follows, and during such holiday time, Order 1 above is suspended:

2.1.With the father:

2.1.1.In NSW short school holidays as follows:

2.1.1.1.In even numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3pm the following Friday; and

2.1.1.2.In odd numbered years, from 3pm on the middle Friday of the holiday period to 3pm the following Friday.

2.1.2.In the NSW Christmas holiday period:

2.1.2.1.In even numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3pm on the middle Friday of the holiday period; and

2.1.2.2.In odd numbered years, from 3pm on the middle Friday of the holiday period to 3pm the Friday immediately preceding the recommencement of school term.

2.2.With the mother:

2.2.1.In NSW short school holidays:

2.2.1.1.In odd numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of require school attendance from 3pm the following Friday; and

2.2.1.2.In even numbered years, from 3pm on the middle Friday of the holiday period to 3pm the following Friday.

2.2.2.In the NSW Christmas holiday period:

2.2.2.1.In odd numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3pm on the middle Friday of the holiday period; and

2.2.2.2.In even numbered years, from 3pm on the middle Friday of the holiday period to 3pm the Friday immediately preceding the recommencement of school term.

1. For the purposes of these Orders, NSW school holidays are deemed to commence at 3pm on the Friday marking the last day of required school attendance or immediately following and are deemed to conclude at 3pm the Friday immediately preceding the resumption of NSW school term and reach the midway point at 3pm on the Friday closest to the mid-point of the holiday period.

2. The parents are permitted to take the children out of the Commonwealth of Australia as agreed between them and failing agreement, provided that:

4.1.The proposed travel shall not be for longer than a twenty-one (21) day duration;

4.2.The proposed travel coincides with NSW school holiday periods unless written permission is obtained from the children’s schools for the children to be absent outside the school holiday period, in which case the travel may extend beyond school holidays by not more than five (5) days;

4.3.The parent proposing to travel with the children is to provide to the other parent, no less than six (6) weeks prior to the proposed travel, the following information in writing:

4.3.1.A full itinerary for the proposed travel, with such itinerary to include all information about the proposed travel including the flight/ship details, the date and time of departure and return to Australia, the intended destination, a list of the places the children will be visiting whilst travelling and addresses of any accommodation where the children will be staying whilst travelling and a copy of all relevant hotel bookings; and

4.3.2.contact numbers for the children for the duration of the trip.

1. Neither parent is permitted to travel with the children to a country which is not subject to the Hague Convention on the Civil Aspects of International Child Abduction without the express written consent of the other parent, subject to payment of a security amount of $20 000 by the parent wishing to travel being deposited into the other parent's solicitor's controlled monies account.

2. The security deposited into the other parent’s solicitor’s controlled monies account, pursuant to Order 5 above, shall be refunded to the travelling parent within seven (7) days of their return to Australia with the children.

3. In the event the travelling parent fails to return to Australia with the children, within seven (7) days of their non-return, the security held by the other parent’s solicitor shall be forfeited to the other parent.

4. Upon a parent travelling overseas with the children pursuant to Order 4 above for all of the short NSW school holidays, the children shall:

8.1.commence living with the other parent pursuant to Order 1 above on the first weekend after the children's return to Australia; and

8.2.live with the non-travelling parent for an additional week in the  NSW Christmas holiday period to compensate for the travelling parent having had the children with him/her during their overseas travel.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keles & Keles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2820 of 2014

Ms Keles

Applicant

And

Mr Keles

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter relates to an application for parenting orders in respect of the children, F born in 2004 who is currently twelve years old (“F”) and E born in 2007 who is currently nine years old (“E”) (collectively “the children”).

2. These proceedings were initially commenced by way of Initiating Application filed by the mother, Ms Keles (“the mother”), on 10 December 2014.  Since that time, however, there have been a number of interim applications determined by the Court and the parties have ultimately been able to resolve the property proceedings.

3. With the assistance of the Independent Children’s Lawyer (“the ICL”) at the final hearing of the parenting proceedings, the parties have been able to resolve a number of outstanding issues that have been in dispute. In doing so, they have taken a realistic attitude and acted in the best interests of their children. The remaining issues to be determined relate to the arrangements for the children to spend time with each parent during the school term and school holidays and arrangements in the event either of the parties wishes to take the children on an overseas holiday.

Background

1. The father was born in 1969 and is currently aged 47 whilst the mother was born on in 1972 and is currently aged 44.

2. The parties were married in the United Kingdom in 2002. 

3. In 2004 F was born and in 2007 E was born.

4. In mid-2008 the family relocated from New Zealand to Australia.

5. In February 2014 the father says the parties separated but continued living under the one roof.

6. On 14 September 2014 the mother moved out of the former matrimonial home. After this occurred, the parties entered into a shared care arrangement for the children which was as follows:

   a)Week 1 – from 10.30 am Sunday to 7.30 am Wednesday with the father.

   b)Week 1 – from 7.30 am Wednesday to 10.30 am Sunday with the mother.

   c)Week 2 – from 10.30 am Sunday to 7.30 am Thursday with the father.

   d)Week 2 – from 7.30 am Thursday to 10.30 am Sunday with the mother.

7. During the proceedings the mother made various allegations to the effect that the father engaged in family violence within the broader description of that concept as set out in s 4AB of the Family Law Act 1975 (Cth) (“the Act”). These allegations were detailed in the mother's trial affidavit filed 8 August 2016 and were rejected by the father. Despite making those allegations, the mother conceded at the final hearing that the father did not present a risk of harm to the children.

8. In his trial affidavit, the father expressed concern regarding the circumstances in which the mother has formed a relationship with Mr G (“Mr G”), one of her work colleagues.  Ultimately, however, the father did not seek to rely on an affidavit of Ms G, the former wife of Mr G, in respect to those concerns. 

9. It was also accepted by the parties’ legal representatives that their respective clients are highly emotional people.  This assessment was borne out during the course of the final hearing. Both parents appeared to have difficulty in self-regulating their own behaviour and, there is no doubt, this has contributed to the dynamic which has given rise to so much disputation between them.

10. On the other hand, the evidence is unequivocal that despite the level of animosity that has at times existed between the parties, they have each been devoted to their children. Both parents can take pride in the fact that the single expert, Dr H, described the children as “beautiful young ladies”, “quite special” and a credit to both of their parents.  The children are also highly intelligent and Dr H expressed the view that the children have tremendous potential.

Matters Agreed

1. On the last day of the final hearing, the parties and the Independent Children's Lawyer agreed to the following orders being made:

   BY CONSENT IT IS ORDERED:

   1.That the parents shall have equal shared parental responsibility for the children, [F] born …/2004 and [E] born …/2007 (hereinafter “the children”).

   2.That the children shall spend special occasion time with each of their parents as follows, and for the purposes of implementation of these orders, during such special occasion time, the live with arrangements set out at Order 2 above are suspended:

   2.1      With the Mother:

   2.1.1From 7pm the Saturday before Mother’s Day to 7pm Mother’s Day;

   2.1.2From 3pm Christmas Day and Good Friday to 3pm Boxing Day and Easter Saturday in each year ending in an even number;

   2.1.3From 3pm Christmas Eve and Easter Saturday to 3pm Christmas Day and Easter Monday in each year ending in an odd number;

   2.1.4From 3pm Christmas Day to 3pm Boxing Day in each year ending in an even number.

   2.2      With the Father:

   2.2.1From 7pm the Saturday before Father’s Day to 7pm Father’s Day;

   2.2.2From 3pm Christmas Eve and Good Friday to 3pm Christmas Day and Easter Saturday in each year ending in an even number.

   2.2.3From 3pm Christmas Day and Easter Saturday to 3pm Boxing Day and Easter Monday in each year ending in an odd number;

   2.2.4Such further and other time as agreed between the parties in writing.

   3.That following the cessation of school holiday time, the equal time arrangement set out at Order 3 above shall resume with the children spending weekend time with the parent with whom they did not spend the last week of school holidays.

   4.That for the purposes of changeover, this shall occur with the children being collected from/ delivered to school and in the event that changeover does not coincide with the commencement or conclusion of school, changeover shall occur outside McDonald’s [Suburb I] at [Suburb A] or as otherwise agreed between the parents in writing.

   5.That each parent shall be at liberty to communicate with the children by telephone on a liberal and flexible basis and for this purpose the parents shall:

   5.1Nominate a phone number for the other parent to contact the children;

   5.2Ensure the children, the telephone and the telephone line are available to take the other parent’s call;

   5.3Do all things necessary to return the other parent’s telephone call as soon as practicable should the call not be answered on the first occasion.

   6.That each parent shall do all things necessary to facilitate any reasonable request made by the children to telephone the other parent and shall ensure that the children are provided a quiet environment to engage in the telephone call.

   7.That each of the parents shall ensure that the children attend at all extracurricular and co-curricular activities at which the children are enrolled whilst in their care, unless in the case of illness or emergency.

   8.That each parent shall do all things and sign all documents necessary to ensure that the children attend at [K School], [Suburb L] for the entirety of their high school education, or such other school as agreed by the parents in writing.

   9.That neither parent shall themselves denigrate, nor allow any third party to denigrate, the other parent, members of the other parent’s family in the presence or hearing of the children.

   10.That in the event of either of or both of the children suffering a medical emergency requiring medical attention while living with either parent:

   10.1     The other parent is to be notified as soon as practicable.

   10.2The other parent is to be provided with the full details of the practitioner or medical facility upon which the child or children has attended as soon as practicable.

   10.3The medical practitioner or facility is to be advised that both parents have access to the children’s medical records and that information relating to the child or children is to be shared with the other parent upon request.

   11.That each parent shall give all consents, sign all documents and do all things necessary to ensure that each parent can obtain the following from the children’s school(s)/after school care(s) at their own cost:

   11.1A copy of all school reports, progress reports and photo order forms.

   11.2Notification for activities that they may decide to attend, such activities being those that parents are ordinarily entitled to or invited by the school to attend.

   11.3Notification of parent/teacher nights and the school is informed that it is the desire of both parents to attend such events NOTING THAT this order does not require the parents to attend the same interview.

   11.4In the event of either of the children being taken from school for an emergency, remedial or correctional treatment, that both parents be informed as soon as practicable.

   12.That each parent shall inform one another within 7 days in writing of their current residential address, at least one contact telephone number and nominated number for the purposes of facilitating telephone communication with the children and shall advise one another within 48 hours in writing should there be any change to said contact details NOTING THAT this order does not authorise either parent to personally attend, or cause any other person to attend, the other parent’s place of residence unless otherwise invited by the other parent or a member of the household.

   13.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

   14.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

   15.That all outstanding applications are dismissed.

2. The parties also agreed, in principle, for the children to spend equal time with each parent but were unable to resolve how that time should be structured.

3. The parties were also in agreement that it was appropriate for each of the parents to be able to take the children on overseas holidays. However, the father argued that such travel should only be for two weeks at a time and should only be to countries that are a party to the Hague Convention on the Civil Aspects of International Child Abduction, signed at the Hague on 25 October 1980 (“the Hague Convention”).

Competing Proposals

1. In respect to the issues remaining in dispute, the parties’ respective proposals were as follows at the final hearing:

Orders proposed by the ICL (Exhibit 9)

1. …       

2. That the children shall live with the parents on a week about equal time arrangement as follows:

2.1with the father, from after school Friday (or 3.00 pm if not a school day) in the first week until after school Friday (or 3.00 pm if not a school day) in the week immediately following:

2.2with the mother from after school Friday (or 3.00 pm if not a school day) in the second week until after school Friday (or 3.00 pm if not a school day) in the week immediately following.

3.…

4.That the children shall spend NSW school holiday time with each of their parents as follows, and during such holiday time, Order 3 is suspended.

4.1      With the Father:

4.1.1     In NSW short school holidays:

(a)In event numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3pm the Friday immediately following.

(b)In odd numbered years, from 3pm on the middle Friday of the holiday period to 3pm the Friday immediately following.

4.1.2     In the NSW Christmas holiday period:

(a)In even numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3pm on the middle Friday of the holiday period.

(b)In odd numbered years, from 3pm on the middle Friday of the holiday period to 3pm the Friday immediately preceding the recommencement of school term.

4.2      With the mother:

4.2.1     In NSW short school holidays:

(a)In odd numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of require school attendance from 3pm the Friday immediately following.

(b)In even numbered years, from 3pm on the middle Friday of the holiday period to 3pm the Friday immediately following.

4.2.2     In the NSW Christmas holiday period:

(a)In odd numbered years, from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3pm on the middle Friday of the holiday period.

(b)In even numbered years, from 3pm on the middle Friday of the holiday period to 3pm the Friday immediately preceding the recommencement of school term.

5.That for the purposes of these Orders, NSW school holidays are deemed to commence at 3pm on the Friday marking the last day of required school attendance or immediately following and are deemed to conclude at 3pm the Friday immediately preceding the resumption of NSW school term and reach the midway point at 3pm on the Friday closest to the mid point of the holiday period.

…

15.That the parents shall communicate in relation to matters pertaining to the children's parenting arrangements and the children's care, welfare and development:

15.1For all non-urgent matters, being those that do not require a response within 48 hours, by email.

15.2For all urgent matters, being those that require a response within 48 hours, in the first instance by text message.

Orders proposed by the mother:

Spend time with (Exhibit 10)

1.That the children live with the mother each Monday afternoon until the commencement of school the following Wednesday and

2.That the children live with the father each Wednesday from the end of school until the commencement of school the following Friday and

3.That the children live with the mother each second weekend from the end of school Friday until the commencement of school the following Monday.

4.That the children live with the father each other weekend from the end of school Friday until the commencement of school the following Monday.

School holidays and Overseas travel (Mother’s Case Outline document)

5.That the parents will spend school holiday time with the Children by nominating one holiday period of up to 3 weeks within the calendar year, with the Mother given first option during the period 20 June – 30 July, with the provisions suspended as follows:

a. The parties must give each other no less than 2 months’ notice of the nominated period (unless where family emergency).

b.The nominated period must not include any period when the children are to be spending time with the other party for a special occasions [sic] referred to above.

c.The parties must provide to the other a full itinerary of planned travel with the Children

d.The parties must personally supervise the Children during their period of travel with the Children, except that they may have a period of 24 hours during the travel period when the Children may be supervised by another family member.

1. In the alternative, the mother supported the orders proposed by the ICL in respect to school holidays and overseas travel.

Orders proposed by the father

Spend time with

1. The father proposed that the children spend time with him in accordance with proposed Order 2 sought by the ICL save that, in respect to school holiday time, instead of changeover being at 3.00 pm that the changeover be at 5.30 pm (proposed Order 5).

Overseas travel (Exhibit 8)

12.The parties shall be and are hereby permitted to take the children out of the Commonwealth of Australia as agreed between the parties and failing agreement, provided that:

12.1The proposed travel shall not occur more frequently than once in every two (2) calendar years;

12.2The proposed travel shall not be for longer than a fourteen (14) day duration;

12.3The proposed travel shall coincide with NSW school holiday periods;

12.4The parent proposing to travel with the children shall provide to the other parent, no less than six (6) weeks prior to the proposed travel the following information in writing:

12.4.1A full itinerary for the proposed travel, with such itinerary to include all information about the proposed trip including the flight/ship details, the date and time of departure and return to Australia, the intended destination, a list of the places the children will be visiting whilst travelling and addresses of any accommodation where the children will be staying whilst travelling and a copy of all relevant hotel bookings; and

12.4.2contact numbers for the children for the duration of the trip.

13.That neither parent shall be permitted to travel with the children to a country which is not subject to the Hague Convention on the Civil Aspects of International Child Abduction without the express written consent of the other parent subject to payment of a security amount of $200,000.00 by the parent wishing to travel being deposited into the other parent’s solicitor’s Trust Account.

14.That upon a parent travelling with the children pursuant to Order 12 above for all of the short NSW school holidays, the children shall commence living with the other parent pursuant to Order above on the first weekend after the children’s return to Australia.

Consideration: Spend Time With Arrangements

Concepts and principles

1. Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the Convention on the Rights of the Child (“the Convention”).[1] Article 19 of the Convention requires parties to the Convention to take steps, including through “judicial involvement”, to:

   protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

   [1] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

3. More generally, the Act makes clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)).

4. Section 61DA(1) provides that the Court must apply a presumption that “it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child”.  Relevantly, for these proceedings, both parents agree that the presumption of equal shared parental responsibility should apply and that has been provided for in the consent orders made on 25 November 2016.

5. Further, both parties agree that it is in the best interests of the children and reasonably practicable that the children spend equal time with each parent as contemplated by s 65DAA of the Act.

6. Essentially, the task then becomes one of determining what orders are appropriate to address the remaining issues in dispute.

7. In that respect, s 60CA provides that in deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65AA.

8. Section 60CC sets out the list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those considerations 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.

9. In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” (s 60CC(2)(b)).

10. Section 60CC(3) sets out additional considerations in determining what is in a child’s best interests. Those considerations include:

    ·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

    ·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.

    ·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.

    ·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

    ·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.

    ·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

    ·Sub-section (3)(f) – the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.

    ·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.

    ·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.

    ·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents;

    ·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family;

    ·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;

    ·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and

    ·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.

Primary considerations

1. In respect of s 60CC(2)(a) the parents are in agreement that it is in the best interests of the children to have an ongoing meaningful relationship with each of their parents.  As noted, the issue becomes how that can be best achieved.

2. In respect of s 60CC(2)(b) the parents are in agreement that the children are not at risk of physical or psychological harm from being subject to or exposed to abuse, neglect or family violence in either parent’s care. It is on that basis that the parents have agreed for there to be an order for equal shared parental responsibility and for the children to spend equal time with each parent.

Additional considerations

1. In terms of s 60CC(3)(a) the single expert, Dr H, has noted that the children have each expressed the view that they would prefer to continue with the current arrangements for them to spend time with their parents. F, in particular, expressed concern that if the period of time that the children spend with each parent was extended it would have the effect of increasing the amount of time that the children spent away from the other parent.  F indicated, quite clearly, that she did not want that to occur.

2. Dr H stated that the children were both at an age where their views should be taken into consideration.  This was particularly the case in respect to F whose level of maturity and intelligence was specifically acknowledged by Dr H.  However, Dr H expressed the view that it was more important for the Court to take steps to reduce the potential for the children to be exposed to conflict between the parents and, on that basis, recommended that the children spend time with their parents on a week-about basis.

3. In terms of s 60CC(3)(b) the parents agreed that the children have a loving relationship with each of their parents.  This was confirmed in the views expressed by Dr H in her report dated 11 March 2016 and in her oral evidence.

4. In terms of s 60CC(3)(c) each parent has taken every reasonable opportunity to spend time with the children, to communicate with the children and to participate in making decisions in major long term issues relating to the children.

5. Indeed, it is the intensity of feeling that each parent has about the significance of those major long term issues for the children that has often given rise to the disputation between them.

6. Neither party challenged the fact that each party assists the children with their homework and participates in their extracurricular activities.  In the mother's case, particular note was made of the mother’s involvement in the children playing netball and Oztag.  In the father’s case, particular note was made of the father’s participation in the children playing soccer, horse-riding and swimming.

7. Despite the tensions that have existed between the parties, each party acknowledged the other’s contribution as a parent.

8. In terms of s 60CC(3)(ca) Dr H’s view could be summarised as being that the parents have unquestionably fulfilled their obligations to physically maintain their children. I agree with that assessment.  However, Dr H expressed the view that the parents have been irresponsible in engaging the children in their own “tug-of-war”.  I also agree with that assessment. Dr H cautioned the parents, in the strongest possible terms, as to the possible long-term consequences for the children if the attitude of the parents does not change.

9. In terms of s 60CC(3)(d) the solicitor for the mother submitted that changing the time that the children spend with each of their parents away from the current arrangement would represent a significant change that would adversely impact upon the children.

10. Specifically, the solicitor for the mother submitted that the children have now established a relationship with each of their parents concerning those activities that the children participate in during the times that they currently spend with each of the parents. 

11. It was submitted that while the mother’s proposed orders would result in between three and four changeovers per fortnight, those changeovers would usually take place at school.  It was further submitted that, despite the conflict between the parents, changeovers have in the past always occurred and there has been no contravention applications filed by either parent in respect to changeover.

12. On the other hand, both the ICL and the solicitor for the father submitted that, although a change to a week-about arrangement would involve some change for the children, that change was justified for a number of reasons. These reasons included, most relevantly, reducing the number of changeovers to two per fortnight which would reduce the potential for conflict between the parties. 

13. It was further submitted by the ICL and the solicitor for the father that the children are now at an age where the frequency of changeovers will be disruptive, in particular, where the mother’s proposal would have the changeovers occurring on two occasions during a school week.

14. In that context, Dr H expressed the view that as the children get older, the frequency of changeovers will become more difficult. This is particularly in circumstances where the children will inevitably be required to bring home from school various items including sporting equipment and musical instruments.  Dr H also expressed the view that the current arrangement is quite complex insofar as confusion can arise as to what occurs on the fourth day of a three/four day split.

15. On balance, it is appropriate to have regard to the views of the children in respect to their wishes not to alter the current spend time with arrangements. However, in the circumstances of this case, I consider the views of Dr H to be sound and those views should be implemented. Reducing the number of changeovers to two per fortnight will reduce the opportunity for conflict between the parties.  Further, it will reduce the extent to which the children are exposed to interactions between their parents and hence, the potential for conflict. It will also have the added benefit that the girls will not be required to pack and unpack their clothes, schoolwork and other personal items as frequently.

16. In relation to the children’s concern about being away from each of their parents for a longer period of time, I note that the parties have sensibly agreed to the children having liberal telephone contact with the parent with whom they are not spending time.

17. In terms of s 60CC(3)(e) it is noted that the parents live in relatively close proximity to each other and also to the girls’ current school and proposed high school.  In that context, issues in respect to the practical difficulty and expense of the children spending time with and communicating with each of their parents are not relevant.

18. In terms of s 60CC(3)(f), as noted the parents have each been able to provide for the physical needs of the children.  The parents have also been able to provide for the intellectual needs of the children with both parents devoting considerable time to assisting the children with their homework and, in the case of the father, also arranging the children to be assisted through the engagement of a nanny.  The parents’ efforts in that respect are reflected in the results that each of the children has obtained at school. 

19. Dr H was very clear, however, that as a result of the level of disputation that has been occurring, each of the parents are not adequately providing for the emotional needs of the children. In that respect, Dr H implored the parents to reflect upon the impact that the level of their disputation is having on their children.

20. As noted, Dr H cautioned that the level of disputation is such that it presents a significant risk to the children developmentally and psychosocially.  Dr H described how the girls were in a “dreadful bind” insofar as there were instances where they had been drawn into the parents’ conflict.  Dr H stated that it was natural for the children to inform the parent whose company they are in of a position that was supportive of that parent.  This could place the children in a “dreadful bind” and cause unnecessary embarrassment and distress to them if they were effectively “caught out” by the other parent as having made comments which were supportive of the other parent’s position.

1. Dr H also expressed concern that the children being subjected to their parents’ ongoing disputation had the potential to cause anxiety and depression and negatively impact upon the children’s resilience.  Dr H expressed the opinion that if the current level of disputation continued, there was a risk that the children might attempt to withdraw from the conflict by choosing one parent over the other. Indeed, as the children approach the age of eighteen, they may in fact turn their back on both parents.  Dr H also expressed the view that if the current situation continued there was also a risk that the children would seek the support of peers, and as they matured boyfriends and boyfriends’ families, rather than look to their parents for advice and support.

2. In terms of s 60CC(3)(g) Dr H expressed the view that each of the children are highly intelligent and mature for their ages and both have significant potential.

3. Dr H noted, however, that as young girls mature into adolescents the challenges they face, and the challenges of parenting as this occurs, will increase.  In particular, Dr H said that as the girls reach puberty it will be natural that they challenge the boundaries set by their parents.  The process of communication between the children and their parents, as this occurs, will be distorted if the children feel as though they are walking on eggshells in respect to their parents.  Dr H further cautioned that if the parents remain emotionally engaged in their own conflict, it will impact upon their ability to emotionally engage with the children. This could be a further factor that results in the children becoming estranged from them.

4. In summary, Dr H advised the parents that, while it was not necessary for them to like each other nor to forgive each other in respect to issues that have given rise to past conflict, it was important that they work to improving their co-parenting including their rapport and the manner in which they each communicate with the other.

5. Section 60CC(3)(h) is not relevant.

6. In terms of s 60CC(3)(i) each parent loves the children and is entirely devoted to them.  There is no question that each parent has acted responsibly in providing for the physical and intellectual needs of the children.  However, as I have noted, the parents have been quite irresponsible in becoming so focused upon their own conflict to the point where this has impacted upon the children and has the potential to significantly impact upon the children’s psychologically well-being in the future.

7. On a positive note it was evident that, to a large degree, each parent acknowledges the impact that their disputation has had on their children.  That acknowledgment is reflected in the fact that the parents went to such lengths to reach an agreement on the matters included in the consent orders made on 25 November 2016.

8. In terms of s 60CC(3)(j) and (i) it is noted that the mother has previously applied for an apprehended violence order against the father; however, that application was dismissed. I have also referred to the allegations set out in the mother’s affidavit that the father has engaged in conduct that, if substantiated, could constitute family violence as defined in s 4AB of the Act.

9. I have no doubt that each parent has been more intemperate and dramatic than they choose to acknowledge.  Indeed, that characteristic in each of the parents has been evident during the course of the final hearing. I also note Dr H’s caution that while issues of family violence must be taken very seriously, there is a risk that competing allegations become amplified during the course of legal proceedings.

10. As noted, while I have no doubt that each party has engaged in conduct in respect to the other that on reflection they would not repeat, the evidence is not such that I am able to find, on the balance of probabilities, that either party has engaged in family violence as contemplated by s 4AB of the Act.

11. Moreover, neither party has submitted that the allegations of family violence are such that they impact upon the issue of parental responsibility or the amount of time that each child spends with the other parent.

12. In terms of s 60CC(l) I am satisfied that, insofar as the children spending week-about time with each parent would reduce the number of changeovers, this would also have the effect of reducing the potential for disputation between the parties. Changeovers occurring at school drop-off and pick-up will also reduce the potential for conflict between the parents. 

13. In turn, reducing the potential for conflict between the parents would be more conducive to the long term sustainability of the orders and would be less likely to lead to the institution of further proceedings.

Conclusion

1. Having evaluated all of the s 60CC considerations I am of the opinion that the orders proposed by the ICL in respect to week-about time best reflect the recommendations of Dr H and I will therefore make orders in those terms.

2. Both parties were in agreement that the children should be able to spend block periods with the other parent during school holidays and that there should also be provision for the parents to take the children overseas during school holidays. In that context, I am of the further opinion that the orders proposed by the ICL appropriately apportion time between the parties and avoid uncertainty in respect to defining the school holiday period. I will therefore make orders in respect to school holidays in the terms proposed by the ICL.

3. I address the issue of overseas travel below.

Overseas Travel

1. At the conclusion of the final hearing on 25 November 2016, the parties agreed that they would each provide written submissions in respect to the question of overseas travel. It should be noted that the ICL did not wish to be heard on this issue.

Submissions of the mother

1. On 5 December 2016 the following written submissions were provided to the Court on behalf of the mother in respect to overseas travel:

   It is submitted that, if the Court were to make Orders permitting both parents to travel overseas with the Children, that overseas travel to any Hague Convention country should not subject to any surety conditions.

   For travel to a non-Hague Country, namely United Arab Emirates, the Court may have regard to the factors set out by the Full Court in the case of Line v Line (1997) FLC 92-729. Specifically, Their Honours identified the following:

   1. The existence or otherwise of continuing ties between the departing parent and Australia (such as ownership of real-estate, the existence of business interests, residence family and friends.)

   The Mother has significant and substantial ties to Australia including employment, a partner and an established social group. She also holds significant assets in Australia, There is evidence of the Mother’s employment, financial assets and relationship status before the Court which has been unchallenged. The Court should therefore assess the Mother’s ties to Australia as very high.

   2. The existence and strength of any possible motives to remain in the other Country

   Despite the ongoing conflict between the parties, there is unchallenged evidence before the Court that the Mother is committed to equal shared parental responsibility with the Father and also values the Children’s regular time with the Father. There is no evidence of any financial motives for the Mother to relocate overseas and any such relocation would result in the discontinuation of her current relationship and significant hardship on the Children, whom the Mother is clearly committed and devoted to. The evidence lead in the matter suggests that the only reasons for travelling to Dubai, has always been a means of stopover to the United Kingdom and for the children to spend some time with their cousins and their aunt.

   3. Whether the other country is a Hague Convention Country

   United Arab Emirates is not a Hague Convention Country however, being an Islamic Country, the rights of the Father far outweigh the rights of the Mother. As such, it would be of little value for the Mother to try and abduct the Children in that country, as the Father may be more able to assert his rights in the UAE.

   The Case of Line & Line provides further guidance for the Court, if an assessment of the above three factors leads to the conclusion that travel to a Non-Hague convention country may carry an unacceptable risk of relocation. On the question of whether a surety should be provided, Their Honours determined that the surety should be of sufficient value to entice the parent to return to Australia and be sufficiently large to allow the other parent to commence recovery proceedings.

   It is submitted that, while the Mother has significant funds available to her, if a surety condition were imposed, that surety should be in the amount of $20,000, to be held in a Controlled Money Account and administered by the Mother’s solicitor.

   To give effect to the Travel Orders, it is submitted that the Court should also make the following Orders:

   1. That the Parent with whom the Children are travelling, should supervise the Children always during any trips and;

   2. Passports are to be given to the other parent 14 days prior to departure and to be given back to the other upon arrival

Submissions of the father

1. On behalf of the father, the following submissions dated 9 December 2016 were provided on the issue of overseas travel:

   These submissions are in addition to the oral submissions made before the Court on 25 November 2016 and are made in accordance with the Directions made by His Honour McLELLAND J [sic] on 25 November 2016. The submissions deal solely with the two issues which the Court is asked to make a determination on, namely overseas travel and 'time with' the Children with the remainder of the issues having been finalised by way of Consent Orders made on the last day of trial being Exhibit 8 in the proceedings.

   Travel

   It is submitted, and on this point the Father agrees with the Mother's counsel's submission, that in the event the Court makes Orders permitting both parents to travel overseas with the children, that overseas travel to any Hague Convention country should not be subject to any surety conditions.

   However, as to travel to countries not signatories to the Hague Convention the Father submits that should be subject to the party wanting to travel to pay a security bond. In considering allowing travel to a non-Hague Country, namely United Arab Emirates, the Court may have regard to the factors set out by the Full Court in the case of Line v Line (1997) FLC 92-729. Specifically, Their Honours identified the following:

   1. The existence or otherwise of continuing ties between the departing parent and Australia (such as ownership of real-estate, the existence of business interests, residence family and friends.)

   The Mother has submitted that she has significant and substantial ties to Australia including employment, a partner and an established social group. The Father submits that other than employment she has no ties as alleged. On her evidence, the Mother's family reside either in Dubai in the United Arab Emirates, namely her sister's family, or in the United Kingdom. She holds no significant assets in Australia be it by way of real-estate or investment of any sort including business interest. The evidence of the Mother vis-à-vis her relationship status is that she is planning to marry [Mr G] but there is nothing concrete in place. The evidence fell that [Mr G] also has plans to travel to Dubai and the court has no evidence before it of any ties [Mr G] has to Australia. On the family aspect, his evidence was that he sees his own son once a year at the most. It is therefore respectfully submitted by the Father that the Court should assess the Mother's ties to Australia as very low.

   2. The existence and strength of any possible motives to remain in the other Country

   Despite the ongoing conflict between the parties, there is unchallenged evidence before the Court that the Mother is committed to equal shared parental responsibility with the Father and also values the Children's regular time with the Father. There is no evidence of any financial motives for the Mother to relocate overseas and any such relocation would result in the discontinuation of her current relationship and significant hardship on the Children, whom the Mother is clearly committed and devoted to. The evidence lead in the matter suggests that the only reasons for travelling to Dubai, has always been a means of stopover to the United Kingdom and for the children to spend some time with their cousins and their aunt.

   3. Whether the other country is a Hague Convention Country

   As counsel for the Mother submitted the United Arab Emirates is not a Hague Convention Country and is a State in which Islam is the predominant religion. The rights of the Father far outweigh the rights of the Mother. However, this only applies to those who are nationals of the United Arab Emirates and subscribe to the Muslim ideology. The evidence before the Court is that neither the Mother nor the Father are of Muslim background nor are they citizens of the United Arab Emirates. The Court may take judicial notice of the legal system applied in the said country and the inability of either party to assert any standing at all as parent when they are foreigners in that country. Hence the Father's concern in the event the Mother decides to remain in the United Arab Emirates, particularly in view of his unchallenged evidence that [Mr G] shares the Mother's wish to travel to Dubai. The court does not have before it any evidence about [Mr G's] intentions as to relocation.

   The Father submits that there is an unacceptable risk of relocation by the Mother. As such, it is respectfully submitted this may be addressed by the posting of a surety by the party intending to travel to the non-Hague Convention country. Such surety ought to be of sufficient value to entice the party to return to Australia and be sufficiently large to allow the other parent to commence recovery proceedings.

   On her evidence the Mother has significant funds available to her and in the absence of any real-estate ownership by her surety posted by her should be in the amount of $200,000.00 to be held in a Controlled Money Account and administered by the Father's lawyer in order to be able to facilitate any necessary recovery proceedings.

   In the interim, it is submitted that the parties shall continue to hold the children's passports as is the currently the case with same provided to the travelling parent on travel being agreed to.

   The Father proposes the following Orders in this respect:

   1. The parties shall be and are hereby permitted to take the children out of the Commonwealth of Australia as agreed between the parties and failing agreement, provided that:

   1.1The proposed travel shall not be for longer than a fourteen (14) day duration;

   1.2The proposed travel shall coincide with NSW school holiday periods;

   1.3      The parent proposing to travel with the children shall provide to the other parent, no less than six (6) weeks prior to the proposed travel the following information in writing:

   1.3.1 A full itinerary for the proposed travel, with such itinerary to include all information about the proposed trip including the flight/ship details, the date and time of departure and return to Australia, the intended destination, a list of the places the children will be visiting whilst travelling and addresses of any accommodation where the children will be staying whilst travelling and a copy of all relevant hotel bookings; and

   1.3.2 contact numbers for the children for the duration of the trip.

   2. That neither parent shall be permitted to travel with the children to a country which is not subject to the Hague Convention on the Civil Aspects of International Child Abduction without the express written consent of the other parent subject to payment of a security amount of $200,000.00 by the parent wishing to travel being deposited into the other parent's solicitor's Controlled Monies Account.

   3. That upon a parent travelling with the children pursuant to Order 1 above for all of the short NSW school holidays, the children shall commence living with the other parent pursuant to Order 2 of the Consent Orders made 25 November 2016 on the first weekend after the children's return to Australia and for the non-travelling parent to have the children live with him/her for an additional week in the end of year holiday to compensate for the travelling parent having had the children with him/her during their travel.

2. On 14 December 2016 my Associate contacted the parties on my behalf and advised that I did not intend to have regard to those parts of the written submissions dealing with “spend time with” arrangements for the children as I considered that the parties were provided with a sufficient opportunity to make those submissions at the final hearing.

Consideration: Overseas Travel

1. As is the case in respect to orders for the children to spend time with each parent, in deciding what orders are appropriate in respect to overseas travel, the Court is required to have regard to the best interests of the child as provided for in s 60CA of the Act. As noted, s 60CC sets out a number of factors that the Court is required to consider in determining what is in a child’s best interests.

2. I have had regard to those factors generally and have placed greatest weight on s 60CC(2)(a). Clearly, if the children were not to return to Australia, the children’s ability to maintain a meaningful relationship with the father would be adversely affected.

3. In terms of s 60CC(3) it was not disputed that members of the children’s paternal extended family reside in New Zealand and members of the children’s extended maternal  family live in the United Kingdom and the United Arab Emirates. Accordingly, if the children are to have a relationship with their extended paternal and maternal families, it will be necessary for them to be able to travel to New Zealand and also the United Kingdom, and possibly the United Arab Emirates.

4. Also of relevance are sub-ss 60CC(3)(d) and (e) which require the Court to have regard to the “likely effect of any change in the child's circumstances”, including separation from either of their parents, and any “practical difficulty and expense of a child spending time with and communicating with a parent”. Again, if the children are not returned to Australia by the parent with whom they are travelling, this would be a significant change in the children’s lives which would involve separation from the non-travelling parent. Failure to return a child from overseas travel would make it very difficult for the children to spend time with and communicate with the non-travelling parent.

5. In terms of s 60CC(3)(m) it is relevant that the children are highly intelligent and the experience of overseas travel has the potential to enhance their personal development, including providing the opportunity to experience different cultures.

6. Having regard to these considerations, I find that it would be in the children’s best interests for the children to have the opportunity to travel overseas including to New Zealand, the United Kingdom and the United Arab Emirates.

7. However, particularly in circumstances where concern about overseas travel has been raised by a parent, the Court needs to have regard to the possible risk of a parent not returning to Australia with the children and the Court must therefore take steps to ameliorate that risk.

8. The mother has not alleged that the father is a flight risk and denies that she would not return to Australia if she were to travel overseas with the children. However, the test to be applied, in considering whether there is a risk of a child not being returned from overseas travel is an objective one which requires an evaluation of the possible risk of non-return, and the consequences which might then flow.  

1. The Full Court in Line & Line (1997) FLC 92-729 set out the factors to consider in evaluating the risk of non-return.[2] They were said to include:

   (1)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);

   (2)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues);

   (3)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and

   (4)Whether the country of travel is a signatory to the Hague Convention.

   [2] at 83,846.

2. While New Zealand and the United Kingdom are parties to the Hague Convention, it is acknowledged by the parties that the United Arab Emirates is not.

3. However, the mother’s submissions to the effect that she does not present as a flight risk, in my view, have substance. Moreover, s 65Y makes it an offence punishable by three year term of imprisonment if a parent takes a child from Australia contrary to an agreement with the other parent or an order of the Court.

4. Having regard to that fact, however, the father is entitled to some comfort that the mother will return with the children. I am of the view that it is appropriate for the Court to require the mother to pay a security in the event that she intends to travel to a country that is not a party to the Hague Convention.

5. In determining what amount is appropriate I have again been guided by the principles set out in Line & Line (supra).  In that case, the Full Court said that the two fold purpose of such a security is to:

   (1)provide a sum which will realistically entice the person removing the children to return; and

   (2)provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.[3]

   [3] at 83,846.

6. On the facts before it, the Full Court in Line & Line (supra) decided that a security of $20 000 was appropriate.

7. I have also had regard to the case of Sukova & Allen [2011] FamCA 340 where Cronin J indicated that any security imposed by the Court needed to strike a balance between providing sufficient comfort to the non-travelling parent but, at the same time, not be so high that it would make travel prohibitive.[4]

   [4] at [46].

8. In that context, I note that as result of resolving the property proceedings with the father, the mother has retained an amount of capital in the sum of approximately $450 000. In circumstances, however, where I have formed the view that the mother does not present as a substantial flight risk, it would be potentially oppressive to require her to utilise a substantial portion of that capital to be provided as a security in the event that she proposes to undertake overseas travel. Requiring a substantial amount of money to be at hand to facilitate such travel could reasonably be expected to impede the opportunity for investment of that capital.

9. In all the circumstances, I am therefore satisfied that it is reasonable to require a party proposing overseas travel that includes travelling to a non-Hague Convention country to pay a security of $20 000.

10. In terms of potential duration of the travel, I note the father’s objection to the children travelling for a period that is longer than school holiday periods. However, in circumstances where both the children are highly intelligent and are high achievers at school, and given the potential educational benefits for the children of engaging in overseas travel, I propose to permit the children to travel for a period that includes up to five school days provided that the children’s absence is approved by their school.

11. Subject to the modifications I have identified, I therefore propose to make orders in terms of those proposed by the father.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 21 December 2016.

Associate: 

Date:  21 December 2016