Kimberley and Kimberley
[2014] FamCA 69
FAMILY COURT OF AUSTRALIA
KIMBERLEY & KIMBERLEY [2014] FamCA 69
FAMILY LAW – CHILDREN – Where the matter was listed for final hearing and adjourned part-heard – Where on the resumption of the hearing the parties entered into negotiations in an attempt to resolve parenting issues – Where the parties were largely successful in resolving the parenting issues, only requiring judicial determination of four discrete issues – Where the matters that remained for judicial determination included the issue of parental responsibility; whether Christmas school holiday periods should alternate each year between the first and second half; whether overseas travel involving the children should be limited to Hague Convention countries and the length of absence in circumstances where in the absence of a parent the other parent is to be notified and be at liberty to care for the children during such absence – Relevant legal principles applied – Where the presumption pursuant to s 61DA is not rebutted and the court determined the parties have equal shared parental responsibility – Where the court declined to make the orders as sought by the mother with respect to the first half of the Christmas school holidays and determined that the school holidays period should alternate between the first half and second half each alternate year – Where the court determined that it is highly unlikely the mother would take the children to a non-Hague Convention country and fail to return to the Commonwealth of Australia – Where the court declined to make orders preventing the children travelling to a non-Hague Convention country – Where the court acceded to the proposal of the Independent Children’s Lawyer and mother with respect to the length of absence in circumstances where in the absence of a parent the other parent is to be notified and be at liberty to care for the children during such absence.
Family Law Act 1975 (Cth) s 61DA
APPLICANT: Ms Kimberley
RESPONDENT: Mr Kimberley
INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney
FILE NUMBER: SYC 287 of 2011
DATE DELIVERED: 13 February 2014
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Stevenson J
HEARING DATE: 22, 23, 24, 25 October 2013,
28, 29 January 2014REPRESENTATION
COUNSEL FOR THE APPLICANT: Ms Gillies
SOLICITOR FOR THE APPLICANT: Shepherds The Family Law Specialists
COUNSEL FOR THE RESPONDENT: Ms Bampton in October 2013
Mr Kimberley appeared on his own behalf on 28 & 29 January 2014
SOLICITOR FOR THE RESPONDENT: Monardo Solicitors in October 2013
Mr Kimberley appeared on his own behalf on 28 & 29 January 2014
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dart
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O'Dowd
Orders
By consent:
(1)That all previous parenting orders in relation to the children:
M born … July 2007 and
S born … July 2008
(“the children”) be discharged.
As determined by the Court:
(2)That the parties have equal shared parental responsibility for the children.
By consent:
(3)That the children live with the mother.
(4)That the children spend time with the father as follows:
a.During the school term as follows:
i.Each alternate weekend from the conclusion of school on Friday (or Thursday if Friday is a public holiday) to the commencement of school on Monday (extended until the commencement of school on Tuesday if Monday is a public holiday), such time to commence on the first weekend of each new school term; and
ii.Each alternate Thursday from the conclusion of school to the commencement of school on Friday, such time to commence on the second week of each new school term.
b.During the school holiday periods following the conclusion of terms 1, 2 and 3 as follows:
i.From 9 am on 17 April 2014 to 5 pm on 21 April 2014;
ii.From 9 am on 3 July 2014 to 5 pm on 8 July 2014; and
iii.From the commencement of Term 3 in 2014, for the first half of the school holiday periods from the conclusion of school on the last day of term, and concluding at 5 pm on the second Saturday thereafter.
c.During the Christmas school holiday periods as follows:
i.From the conclusion of school on 19 December 2014 to 12 pm on 25 December 2014; and
ii.From 3 January 2015 to 17 January 2015; and
As determined by the Court:
iii.Commencing from the conclusion of the 2015 school year, one half of all school holiday periods, being the second half in 2015 in each alternate year thereafter, and the first half in 2016 and each alternate year thereafter.
By consent:
d.At such further times as may be agreed between the parties in writing from time to time.
(5)That notwithstanding any order above, the children are to spend the following special occasions in the care of each parent:
(a) Christmas
(i)That the children be with the father from 12.00 pm on Christmas Day to 5.00 pm on 27 December; and
(ii)That the children be with the mother from 12.00 pm on 23 December to 12.00 pm on Christmas Day.
(b) On the children’s respective birthdays:
(i)That if the children are not otherwise in the father’s care on … July and … July (being the children’s respective birthdays), the children are to spend time with the father from the conclusion of school to 6.00 pm if it is a school day or from 2.00 pm to 6.00 pm if the children are not otherwise in attendance at school that day.
(ii)That if the children are not otherwise in the mother’s care on their birthday, they are to spend time with the mother at the times provided for in order 5(b)(i) above.
(c) Mother’s and Father’s Day
(i)That if the children are not otherwise in the father’s care on the weekend which includes Father’s Day, the children are to be with the father from 5.00 pm on Saturday to the commencement of school on Monday.
(ii)That if the children are not otherwise in the mother’s care on the weekend which includes Mother’s Day, the children are to be with the mother from 5.00 pm on Saturday to the commencement of school on Monday
(6)That wherever possible, changeover is to occur at the school. In the event that changeover is to occur at a time when either or both children are not at school, changeover is to be facilitated by the mother or her delegate delivering the children to the father’s residence at the commencement of time and the father or his delegate returning the children to the mother’s residence at the conclusion of such time.
(7)
In the event that either child suffers an injury during the time that they are spending with either parent, that parent shall, within
24 hours, ensure the other is advised in writing:
(a) The injury suffered;
(b) How the child suffered the injury; and
(c) The treatment rendered.
(8)That the parents are to notify the other, within 48 hours, of the children or either of them attending for a dental appointment, or a medical appointment where medication was prescribed, such notice to include the name of the professional attended upon and any diagnosis, medication prescribed and/or follow up treatment recommended.
(9)That the parties are at liberty to attend all school, sporting and extra-curricular activity to which parents are generally invited. This includes but is not limited to school carnivals, parent/teacher meetings and end of year concerts.
(10)That the mother is to do all acts and things necessary to ensure that the father is at liberty to obtain directly from the school, at his own request and expense, copies of all school reports, circulars and photographs.
(11)That each party shall ensure that the other parent is aware of their residential address, a contact telephone number and a contact email address.
(12)That the parties are to notify the other, in writing, of any change to their residential address, contact email address and/or contact telephone number within 24 hours of any change to same.
(13)That the parties are to notify the other parent of any medical or other emergency concerning the children or either of them, as soon as reasonably practicable after such event.
(14)That the parties be, and hereby are restrained from denigrating the other parent, their spouse or family in the presence or hearing of the children and are to use their best endeavours to ensure that no other person does so in the presence or hearing of the children.
(15)That the parents not physically discipline the children or permit any other person to do so.
(16)That prior to the expiration of the children’s passports the mother shall provide to the father Applications for passports for each of the children.
(17)That thereafter the mother is at liberty to obtain passports for each of the children and shall retain them in her possession, other than releasing them to the father upon his compliance with order 20 below.
(18)That the father shall forthwith return the passports or cause them to be returned to the mother upon the children coming back to the Commonwealth of Australia.
(19)That other than as provided for each party shall do all acts and things necessary including signing any document so as to ensure that the children are issued with passports and have current passports.
(20)That both parties are at liberty to travel outside of the Commonwealth of Australia with the children during periods the children would otherwise be living with them provided:
(a)That at least 28 days prior to the proposed date of travel the parent with whom the children are to travel shall forward to the other parent a copy of the aircraft itinerary/ airline tickets for the periods of travel; and
(b)That they provide details of where the children shall be accommodated during the period of travel including a telephone number and address.
(21)That during any period that the children are overseas the travelling parent shall provide the non-travelling parent with a contact telephone number for the children.
(22)That during school holiday periods the parent who is caring for the children shall ensure that the children telephone or Skype (if available) the other parent each Wednesday between 6pm - 6.30pm New South Wales time.
(23)That where:
(a) The children are in a parent’s care pursuant to these orders; and
(b) That parent is away for more than three consecutive nights; and
(c)The children are not accompanying that parent and they are to be cared for by a third party, not being that parent’s spouse,
the parent with the care of the children is to notify the other parent, in writing, no less than 7 days prior (or as soon as practicable in the event of an emergency) and the other parent be at liberty to care for the children during any such period that the parent who was to have care of the children is away.
(24)That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
(25)That all material produced on subpoena be returned.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kimberley & Kimberley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT SYDNEY FILE NUMBER: SYC 287 of 2011
Ms Kimberley Applicant
And
Mr Kimberley Respondent
REASONS FOR JUDGMENT
the proceedings
1.The applicant mother, Ms Kimberley, and the respondent father, Mr Kimberley, are the parents of two children:
M born in July 2007 (6) and
S born in July 2008 (5).
These proceedings concern parenting orders in relation to M and S. Also fixed for determination was the mother’s application filed on 27 August 2012, which was styled as “enforcement” of orders for property settlement made on 9 August 2011.
2.The trial was originally fixed to commence on 29 July 2013. On 25 July 2013 the mother’s current husband, Mr W, swore an affidavit in which he deposed to their relationship and their plan to marry in August 2013. The mother deposed to her engagement to Mr W and their plans to marry in August 2013 in her affidavit of 4 July 2013. I took the view that Mr W should be interviewed by the single expert and observed with M and S. The Independent Children’s Lawyer (“ICL”) adopted the same position.
3.The single expert, Ms R, prepared a report dated 5 April 2013. Having interviewed Mr W and observed him with the children, she prepared an updating report of 17 October 2013.
4.The trial commenced on 22 October 2013 and proceeded until 25 October 2013, when a further adjournment was necessary for reasons which are not relevant for present purposes. On 25 October 2013 I made the following interim orders, by consent, which provided as follows:
Pending further order the court orders that:
1.That all previous parenting orders in relation to the children [M] born … July 2007 and [S] born … July 2008 (the children), save for the order appointing the ICL dated 4 September 2012, be discharged.
2.That the children live with the mother, conditional upon the mother’s ongoing compliance with order 6.
3.That the children spend time with the father as follows:
a.On a three weekly cycle for 2 consecutive weekends out of every 3 weekends from 9am on Saturday to 5pm Sunday; the dates being:
26-27 October 2013
2-3 November 2013
16-17 November 2013
23-24 November 2013
7-8 December 2013
14-15 December 2013
b.From 12pm on 25 December 2013 to 5pm on 27 December 2013;
c.From 9 am on 1 January 2014 to 5 pm on 4 January 2014; and
d.From 9 am on 14 January 2014 to 5 pm on 17 January 2014; and
e.From school term in 2014, each alternate weekend from the conclusion of school Friday to the commencement of school on the following Monday (or in the event that Monday is a public holiday, such time to conclude Tuesday), such time to commence on Friday 31 January 2014 and recommence on the first Friday after term time recommences.
f.From 9am on 17 April 2014 to 5pm on 21 April 2014, with school term time contact being suspended during the April school holidays.
g.From 9am 3 July 2014 to 5pm on 8 July 2014, with school term time contact being suspended during the July school holidays.
4.That wherever possible, changeover is to occur at the school, however in the event that changeover is to occur at a time when either or both children are not at school, changeover is to be facilitated by the mother or her delegate delivering the children to the father’s residence at the commencement of time and the father or his delegate returning the children to the mother’s residence at the conclusion of such time.
5.Notwithstanding Order 4 above, prior to the date of [S] commencing school in 2014, if the father or his delegate is to collect or drop off [M] at school, the father or his delegate will, on that day, also collect or drop off [S] at the mother’s residence.
6.That the mother is to continue to attend upon [Mr A] for ongoing assistance in relation to parenting issues.
7.That the Independent Children’s Lawyer have leave to provide the reports of [Ms R] and these orders to [Mr A].
8.That the parents not physically discipline the children or permit any other person to do so.
9.That the parties have liberty to restore this matter to the list on 7 days notice.
10.Within 14 days of the date of these orders the mother shall provide to the father Applications for Passports for each of the children.
11.Within 14 days of receiving the documents outlined in Order 15 the father shall cause the Application for Passports for each of the children to be returned to the mother’s solicitor executed by him.
12.Thereafter the mother is at liberty to obtain passports for each of the children and shall retain them in her possession, other than releasing them to the Father upon his compliance with Order 15.
13.The father shall forthwith return the passports or cause them to be returned to the mother upon the children coming back to the Commonwealth of Australia.
14.Other than as provided for each party shall do all acts and things necessary including signing any document so as to ensure that the children are issued with passports and have current passports.
15.Both parties are at liberty to travel outside of the Commonwealth of Australia with the children to a destination that is a signatory to the Hague Convention (International Convention on Civil Aspect of Child Abduction), during time that the children would otherwise be living with them or spending time with them provided:
a.That at least 28 days prior to the proposed date of travel the parent with whom the children are to travel shall forward to the other parent a copy of the aircraft itinerary/airline tickets for the period of travel.
b.Provide details of where the children shall be accommodated during the period of travel including a telephone number and address.
16.The parents shall provide to the other, in writing, a telephone number upon which the children can be contacted whilst they are in the other parent’s care.
17.That each parent provide the other parent with an email address for communication within 7 days of these orders.
18.The mother shall communicate with the children by telephone at 6pm on 26 October, 2013 and 2 November, 2013, when the children are in the father’s care, with such communication being facilitated by the mother contacting the children on the number that the father has provided to her pursuant to Order 16.
19.Thereafter when the children spend more than 2 consecutive nights in the father’s care the mother shall be at liberty to communicate with them by telephone on the 2nd night that they are in the father’s care at 6pm. Such communication is to be facilitated by the mother telephoning the children on the number that the father has provided to her pursuant to Order 16.
20.Other than as provided for in orders 18 and 19 when the children are in either parent’s care, if they express a wish to speak to the other parent, each parent shall facilitate telephone communication between the other parent and the children.
21.In the event that either child suffers an injury during the time that they are spending with either parent, that parent shall, within 24 hours, ensure the other parent is advised in writing:
i.The injury suffered;
ii.How the child suffered the injury; and
iii.The treatment remedies.
22.In the event that either child makes a disclosure to either parent regarding any alleged abuse of a physical or sexual nature whilst in the other parent’s care, the parent to whom disclosure is made is to advise the other parent in writing, within 24 hours of the disclosure, of the content and context of the disclosure.
23.The matter is listed for further final hearing for the three days commencing 20 January, 2014.
5.On the same date, over the objection of the mother, I also ordered that the father was at liberty to take the children to Darwin for a family celebration for three days, under the supervision of his wife or the paternal grandmother. This trip proceeded without incident and, according to the father, the children had an enjoyable time.
6.The trial resumed on 28 January 2014. The parents and the ICL spent that day in negotiations in an attempt to resolve parenting issues. To their great credit, they were largely successful and I am required to determine only four outstanding issues. I was invited by all parties to make orders in relation to the matters which were the subject of agreement and then to determine the outstanding issues on the basis of submissions.
7.Accordingly on 28 January 2014 I made orders by consent in the following terms, noting that the outstanding issues are identified in the document:
1.That all previous parenting orders in relation to the children [M] born … July 2007 and [S] born … July 2008 (“the children”) be discharged.
2.[For judicial determination: parental responsibility]
3. That the children live with the mother.
4. That the children spend time with the father as follows:
a. During the school term as follows:
i.Each alternate weekend from the conclusion of school on Friday (or Thursday if Friday is a public holiday) to the commencement of school on Monday (extended until the commencement of school on Tuesday if Monday is a public holiday), such time to commence on the first weekend of each new school term; and
ii.Each alternate Thursday from the conclusion of school to the commencement of school on Friday, such time to commence on the second week of each new school term.
b. During the school holiday periods following the conclusion of terms 1, 2 and 3 as follows:
i.From 9 am on 17 April 2014 to 5 pm on 21 April 2014;
ii.From 9 am on 3 July 2014 to 5 pm on 8 July 2014; and
iii.From the commencement of Term 3 in 2014, for the first half of the school holiday periods from the conclusion of school on the last day of term, and concluding at 5 pm on the second Saturday thereafter.
c. During the Christmas school holiday periods as follows:
i.From the conclusion of school on 19 December 2014 to 12 pm on 25 December 2014; and
ii.From 3 January 2015 to 17 January 2015; and
iii.[For judicial determination: whether the father should have the first half every year (as sought by the mother) or whether the first and second half should be alternated (as sought by the father)]
iv.Commencing from the conclusion of the 2015 school year, one half of all school holiday periods, being the first half in 2015 in each alternate year thereafter, and the second half in 2016 and each alternate year thereafter.
d. At such further times as may be agreed between the parties in writing from time to time.
5.That notwithstanding any order above, the children are to spend the following special occasions in the care of each parent
a. Christmas
i.That the children be with the father from 12.00 pm on Christmas Day to 5.00 pm on 27 December; and
ii.That the children be with the mother from 12.00 pm on 23 December to 12.00 pm on Christmas Day.
b.On the children’s respective birthdays:
i.That if the children are not otherwise in the father’s care on … July and … July (being the children’s respective birthdays), the children are to spend time with the father from the conclusion of school to 6.00 pm if it is a school day or from 2.00 pm to
6.00 pm if the children are not otherwise in attendance at school that day.ii.That if the children are not otherwise in the mother’s care on their birthday, they are to spend time with the mother at the times provided for in order 5(b)(i) above.
c.Mother and Father’s Day
i.That if the children are not otherwise in the father’s care on the weekend which includes Father’s Day, the children are to be with the father from 5.00 pm on Saturday to the commencement of school on Monday.
ii.That if the children are not otherwise in the mother’s care on the weekend which includes Mother’s Day, the children are to be with the mother from 5.00 pm on Saturday to the commencement of school on Monday
6.That wherever possible, changeover is to occur at the school. In the event that changeover is to occur at a time when either or both children are not at school, changeover is to be facilitated by the mother or her delegate delivering the children to the father’s residence at the commencement of time and the father or his delegate returning the children to the mother’s residence at the conclusion of such time.
7.In the event that either child suffers an injury during the time that they are spending with either parent, that parent shall, within
24 hours, ensure the other is advised in writing:a. The injury suffered;
b. How the child suffered the injury; and
c. The treatment rendered.
8.That the parents are to notify the other, within 48 hours, of the children or either of them attending for a dental appointment, or a medical appointment where medication was prescribed, such notice to include the name of the professional attended upon and any diagnosis, medication prescribed and/or follow up treatment recommended.
9.That the parties are at liberty to attend all school, sporting and extra-curricular activity to which parents are generally invited. This includes but is not limited to school carnivals, parent/teacher meetings and end of year concerts.
10.That the mother is to do all acts and things necessary to ensure that the father is at liberty to obtain directly from the school, at his own request and expense, copies of all school reports, circulars and photographs.
11.That each party shall ensure that the other parent is aware of their residential address, a contact telephone number and a contact email address.
12.That the parties are to notify the other, in writing, of any change to their residential address, contact email address and/or contact telephone number within 24 hours of any change to same.
13.That the parties are to notify the other parent of any medical or other emergency concerning the children or either of them, as soon as reasonably practicable after such event.
14.That the parties be, and hereby are restrained from denigrating the other parent, their spouse or family in the presence or hearing of the children and are to use their best endeavors to ensure that no other person does so in the presence or hearing of the children.
15.That the parents not physically discipline the children or permit any other person to do so.
16.That prior to the expiration of the children’s passports the mother shall provide to the father Applications for passports for each of the children.
17.That thereafter the mother is at liberty to obtain passports for each of the children and shall retain them in her possession, other than releasing them to the father upon his compliance with order 20 below.
18.That the father shall forthwith return the passports or cause them to be returned to the mother upon the children coming back to the Commonwealth of Australia
19.That other than as provided for each party shall do all acts and things necessary including signing and document so as to ensure that the children are issued with passports and have current passports.
20.That both parties are at liberty to travel outside of the Commonwealth of Australia with the children during periods the children would otherwise be living with them provided:
a.That at least 28 days prior to the proposed date of travel the parent with whom the children are to travel shall forward to the other parent and copy of the aircraft itinerary/ airline tickets for the periods of travel; and
b.That they provide details of where the children shall be accommodated during the period of travel including a telephone number and address.
c.[for judicial determination – whether such travel should be limited to Hague Convention countries or in the event that travel to non-Hague countries is permitted, whether the parents should obtain prior permission of the non-travelling parent]
21.That during any period that the children are overseas the travelling parent shall provide the non-travelling parent with a contact telephone number for the children.
22.That during school holiday periods the parent who is caring for the children shall ensure that the children telephone or Skype (if available) the other parent each Wednesday between 6pm -6.30pm New South Wales time.
23.That where:
a. The children are in a parent’s care pursuant to these orders; and
b. That parent is away for more than [for judicial determination: whether this should be two or three] consecutive nights; and
c. The children are not accompanying that parent and they are to be cared for by a third party, not being the that parent’s spouse
The parent with the care of the children is to notify the other parent, in writing, no less than 7 days prior (or as soon as practicable in the event of an emergency) and the other parent be at liberty to care for the children during any such period that the parent who was to have care of the children is away. (as per original)
8.On 29 January 2014 the parties to the enforcement proceedings reached agreement in relation to that application and outstanding costs issues. Accordingly, I made orders by consent in the following terms:
1.The wife’s enforcement application filed on 14/6/12 is dismissed.
2.All outstanding costs applications including any application for costs arising out of the Husband’s contravention Application are withdrawn and dismissed.
3.Each party shall pay their own costs of and incidental to the parenting and property proceedings including any ancillary application.
4.Noted that the parties agree that these orders shall bring to a conclusion any claim or application for costs currently before the Court.
Background
9.The mother was born in 1980 and is 34 years of age. The father was born in 1970 and is aged 43 years. The parties met in their workplace in 2006 and began a relationship in June of that year. They married in January 2007 and separated in either November 2010 or December 2010. It was common ground that the mother and the children moved out of the former matrimonial home on 10 December 2010. The parties were divorced in February 2012.
10.Each of the parties has repartnered and married since the separation. The mother married Mr W in August 2013. He is currently working in Papua New Guinea on a contract which expires in October 2015. The father married Ms B in February 2013, having commenced a relationship with her in August 2011.
11.After the separation the children spent limited time with the father. The father alleged that the mother deliberately curtailed the children’s time with him but, for whatever reason, they saw him on only ten occasions in the six month period between the separation and June 2011. Only one of these occasions included overnight time.
12.On 7 June 2011 interim orders were made which provided that the parties have equal shared parental responsibility; that the children live with the mother and spend time with the father each Sunday from 9:00am until 5:00pm and every Thursday from 6:00pm until 7:30pm. The parties departed from these orders in July 2011, when they agreed that the boys spend time with the father from 8:00am until 6:00pm on 30 July 2011. He took them to Wollongong to see the paternal grandparents on that occasion.
13.On 5 August 2011 the mother approached police and sought an apprehended violence order against the father for the protection of M. She claimed that she saw bruising on his face when he returned from time with the father. She alleged further that M complained that the father “hit” him. The mother unilaterally suspended the children’s time with the father.
14.On 21 November 2011 the application for an apprehended violence order was dismissed by the Local Court. The children then resumed spending time with the father in accordance with the orders of 7 June 2011 until early August 2012. Between 27 November 2011 and 5 August 2012 the children made numerous complaints to the mother of physical mistreatment by the father. She photographed cuts and bruises on the boys on several occasions. The father strongly denied that he ever inflicted injuries on the children or otherwise subjected them to physical abuse in any way.
15.The mother alleged that S complained of sexual abuse by the father on 1 August 2012 and 5 August 2012. He vehemently denied these allegations. A report was made to Community Services, NSW Department of Family and Community Services but no action was taken “due to other competing priorities within the CSC at that time”. The mother again unilaterally suspended the children’s time with the father on 5 August 2012.
16.The mother alleged, further, that the father failed to feed the children adequately while they were in his care. It was evident from the contents of her affidavit sworn on 4 July 2013 that the mother used leading questions to extract these complaints from the children. The father described these allegations as “simply nonsense”.
17.Between 5 August 2012 and 12 June 2013 the children spent no time with the father. On 12 June 2013 interim orders were made which provided that they spend time with the father under the supervision of his wife, Ms B, or the paternal grandmother Ms C, or another adult as agreed in writing.
18.As noted, interim orders were made by consent on 25 October 2013, which provided for the children to spend unsupervised overnight time with the father. Similarly, final orders were made by consent on 28 January 2014 which provided for unsupervised overnight time. In my view, it is thus unnecessary that I analyse and make findings in relation to the mother’s allegations of physical and sexual abuse of the children, and failure to feed them adequately, by the father.
19.Following the adjournment of the proceedings on 29 July 2013, the mother began to consult a psychologist Mr A. The orders made on 25 October 2013 provided that the mother continue to seek assistance from Mr A.
Consideration of the Outstanding Issues
1.Parental Responsibility
20.The father and the ICL sought orders that the parties have equal shared parental responsibility. The mother proposed that she have sole parental responsibility. Ms R recommended that the mother and Mr W have sole parental responsibility. I would respectfully observe such an order would be unusual, since Mr W is neither a parent nor a party to the proceedings.
21.The mother’s Amended Initiating Application filed on 3 November 2011 sought no order in relation to parental responsibility. Accordingly, the parties would continue to have equal shared parental responsibility pursuant to the relevant order of 7 June 2011. In my view, it can thus be inferred that the mother was content for the parties to have equal shared parental responsibility until she submitted a Minute of Proposed Orders on 22 October 2013. The father had at all times sought an order that the parties have equal shared parental responsibility.
22.Section 61DA of the Family Law Act provides as follows:
Presumption of equal shared parent responsibility when making parenting orders
(1)When making a parenting order in relation to a child, 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.
Note: the presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child)has engaged in:
d.abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
e. family violence
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child’s parents to have equal shared parental responsibility for the child.
23.The ICL submitted that this presumption was not rebutted and that the parties should have equal shared parental responsibility. The ICL contended that “the parents can communicate at some level” and pointed out that most changeovers will be at the children’s school pursuant to the orders of 28 January 2014.
24.The ICL noted Ms R’s opinion that “either one of these parents might use a sole residency/sole parental responsibility order to disempower the other”. The ICL indicated that he shared this concern but, nonetheless, maintained that the mother and father should have equal shared parental responsibility.
25.Ms R reported that the father “had asserted that shared parental care and responsibility was not viable”. With great respect, I am not satisfied that the father intended to convey that view, as he has consistently maintained his application for equal shared parental responsibility. Ms R reported that he said: “the joint stuff (was) not going to work” and that “we will have to let them go”. My impression was that the father was referring to shared care and not equal shared parental responsibility, given that he abandoned his proposal for a week-about arrangement and sought orders to the effect that the children spend the majority of their time with him at the resumption of the trial in January 2014.
26.On behalf of the mother, it was contended that email correspondence which passed between the parties in the period 2013 to January 2014 “countered the ICL’s submission that the parents can communicate constructively”. I respectfully disagree with that proposition, as the tone of a substantial portion of this correspondence was polite on both sides and related to real issues concerning the children.
27.Examples of correspondence which would fall within that description were as follows:
Sat, Oct 26 2013 at 8:34AM
Good morning [the mother] and [Mr W],
Thanks for sending through your contact details.
We would prefer to use this email for all communication.
[Ms B’s] Skype user name is … .
Mobile/SMS either
[Ms B] on …
[The father] on … .
We’ll have the boys ready to chat at 6 pm this evening with our laptop and [Ms B’s] mobile. You’re welcome to Skype or call, whichever you prefer.
Next weekend we have a family lunch in Wollongong on Sunday. We will be back for the boys return at 5 pm.
Thanks
[Ms B] and [the father]
Sat, Oct 26 2013 at 9:06AM
Morning [Ms B] & [the father]
Thank you for your email, please refer to the below, Apologizes it was sent to [the father’s] address prior to reading your response.
Kind regards
[The mother] & [Mr W]
Begin forwarded message:
From [The mother] & [Mr W] …
Date: October 26, 2013 at 8:58:20 AM GMT+11
To: …
Subject: Breakfast 26th October
Morning [The father] and [Ms B]
As we dropped [Mr W] at the airport this morning, there were some time constraints. The boys haven’t had breakfast yet. We have pack Pajama’s in the overnight bag.
Thank you for your understanding
Kind regards
[The mother] & [Mr W]
Wed, Dec 25 2013 at 11:53AM
Morning [the father] and [Ms B]
[M] and [S] have both had their breakfast. They have also insisted on bringing their favourite pyjamas.
[M] and [S] both enjoyed celebrating their Christmas with their aunties/uncles, cousins, extended cousins and grandparents and opening their presents from Santa and their family.
[S] has a graze on his right knee. It’s been healing well though [S] bumped it again this morning. Sprayed with a ban-aid spray. Can you please keep an eye on it.
Returning pants and underwear that [M] & [S] came home with last 15th Dec.
Merry Christmas
[The mother] & [Mr W]
28.Mr W gave oral evidence in October 2013. He impressed me as an honest and balanced person, who is likely to be a constructive influence on the mother. Inter alia, he said “I suggested that [the mother] refer the matter to DoCS because we are not qualified to make that call”. This was in response to M’s statement that he had been “touched”. He said also “I have not formally met the father yet. I am willing to do that, of course that would help the boys”.
29.In his affidavit of 21 January 2014 the father deposed that the mother refuses to get out of her car and speak to him at changeovers. On the other hand, if Mr W is present on changeovers he gets out of the car and “makes small chat”.
30.Ms R reported on her interview with Mr W as follows, inter alia:
Mr [W] referred to [M’s] allegations about being touched as “hearsay” and there is no evidence. He has cautioned [the mother] and suggested she call DoCS to ensure a proper investigation is carried out rather than make assumptions.
He stated he is undecided about the issue of abuse but questioned where the truth lies as, the previous day, he heard “two different versions” from [M]. He explained [the mother] had got [M] to repeat to him allegations [the father] hit, punched and touched him. [M] had initially told Mr [W] Dad hit him while he was on a flying fox and [Ms B] and others were present. He had later told his grandfather Daddy hit him while they were away from everyone else.
Mr [W] stated his “goal” was to “look objectively and listen”, without the animosity that exists between [the mother] and [the father]. He said he has not delved into their history nor read any reports, commenting he is aware there are two ways of looking at things.
31.The orders to which the parties consented on 28 January 2014, in my view, preclude any finding that the presumption does not apply because the children have been subjected to abuse. The evidence was incomplete and no submissions were made as to whether either parent or any other relevant person has engaged in family violence. In these circumstances I am not prepared to make a finding that the presumption does not apply on that basis.
32.The only issue, then, is whether the presumption has been rebutted by evidence that it would not be in the children’s best interests for their mother and father to have equal shared parental responsibility. In my view, that proposition was not established on the evidence.
33.It is true that there appears to be a chronic level of hostility between the parents but, in my opinion, the ICL was correct in his submission that they communicate “at some level”. They manage to have the children move between households and inform each other of basic information. On some occasions, they exchange civilities and pleasantries.
34.My impression is that Mr W is likely to be a constructive influence on the mother, as will Ms B in the case of the father. I am also encouraged by the mother’s engagement with Mr A, who is a psychologist with many years of experience in dealing with parents and children in separated families.
35.I thus conclude that the presumption has not been rebutted and the parties will have equal shared parental responsibility. It is my view that M and S will benefit from an awareness that they have two loving, committed parents, each of whom takes a great interest in their wellbeing.
2.Christmas School Holidays
36.The mother sought that the children spend the first half of the Christmas school holidays in every year with the father. He sought that they spend alternating first and second halves of these holidays in his care. The ICL was silent on this issue.
37.The only reason that the mother proffered in support of her application that the children spend the second half of the Christmas school holidays with her in every year was that her family has an annual camping trip at that time. I am not persuaded that this reason is sufficient to take away from the children the potential for a variety of experiences with the father and his wife in alternate halves of the Christmas holidays. On the mother’s proposal, for example, their time with the father would always be interrupted by specific arrangements for Christmas Eve, Christmas Day and Boxing Day. The father would thus have limited scope to take the children away from home on a holiday.
38.Accordingly, I decline to make orders as sought by the mother in respect of the Christmas school holidays. I will order that the children spend alternating halves of the Christmas school holidays with the father. I note that he informed me in his submissions “I will swap a week down the track if the mother will agree”.
3.Overseas Travel
39.The issue here was whether overseas travel should be restricted to countries which are signatories to the Hague Convention, as sought by the father, or should be at large as proposed by the mother. The ICL was silent on this issue, other than to submit that there was no evidence to suggest that either party is a flight risk.
40.The mother was born in the Philippines and wishes to visit family members in her home country with the children. Additionally, Mr W is contracted to work in Papua New Guinea until October 2015 and she wishes to visit him there with the children.
41.The mother and her parents are Australian citizens and permanent residents of this country. She has a history of employment in the financial sector in Australia. Pursuant to final orders made on 9 August 2011 the mother became the sole registered proprietor of a property at M Street, Sydney Suburb 1, which she leases to tenants. The mother and the children live with her parents at Suburb D. Mr W has an established business in Australia and intends to live in this country on the expiry of his contact. These matters indicate to me that the mother has strong connections to Australia and is highly unlikely to take the children to a non-Hague convention country and fail to return them to the Commonwealth of Australia.
42.The father expressed “concern” at the prospect that the mother may take the children to Papua New Guinea to visit Mr W. His employment is in a senior security role in Papua New Guinea. He has twenty four years’ experience in the law enforcement, military and transport sectors in Australia and New Zealand. With Mr W’s background and my overall favourable impression of him, I have every confidence that he will take all steps necessary to ensure the children’s safety if they visit him in Papua New Guinea.
4.Absence of a Parent
43.The ICL and the mother proposed that the other party have the option to care for the children if a parent is absent for more than three days. The father proposed that this option should be activated after an absence of two days.
44.Each of the parents has extended family support in Sydney. It seems to me that occasions of absence of a parent would be relatively rare and I perceive no good reason for the children to leave their existing situation after a parental absence of only two days. I have no reason to suppose that either parent would fail to make adequate arrangements for the care of the children for an absence of three days. Accordingly, I will accede to the proposal of the ICL and the mother.
I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 13 February 2014.
Associate:
Date: 13 February 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Remedies
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