Lacerra and Dalley and Valentine
[2012] FMCAfam 414
•2 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LACERRA and DALLEY & VALENTINE | [2012] FMCAfam 414 |
| FAMILY LAW – Children’s orders between father and maternal grandmother and maternal aunt – mother deceased – whether child should be included on the PACE alert list. |
| Family Law Act 1975, ss.4, 60B, 60CC, 65C, 60CA, 64C, 61DA, 65DAC, 65DAA, 62G, 65Y |
| Goode & Goode (2006) FLC 93-286 Marvel [2010] FamCAFC 101 MRR & GR [2010] HCA 4 Pitken & Hendry [2008] FamCA 186 Dylan & Dylan [2007] FamCA 842 Mabo v Queensland [1992] HCA 23 Minister of Ethnic Affairs v Teoh [1995] HCA 20 B & B and Minister of Immigration & Multicultural and Indigenous Affairs [2003] FamCA 621 Browne & Dunn (1893) 6 R 67 (HL) Glaser v The United Kingdom [2000] UCHR Application 32346/96 |
| Applicants: | MS LACERRA & MS DALLEY |
| Respondent: | MR VALENTINE |
| File Number: | PAC 2473 of 2011 |
| Judgment of: | Harman FM |
| Hearing dates: | 29 and 30 March 2012 |
| Date of Last Submission: | 30 March 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 2 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Judge |
| Solicitors for the Applicant: | John Spence & Associates |
| Counsel for the Respondent: | Mr Glissan |
| Solicitors for the Respondent: | AKN & Associates |
ORDERS
All prior parenting orders with respect to child X born (omitted) 2004 (save orders made 30 March 2012) shall be and are herby discharged.
X shall live with her father Mr Valentine.
X shall spend time with applicants being the maternal grandmother Ms Dalley. and applicant maternal Ms Lacerra as follows;
(a)If and when X is residing in Sydney
(i)Each third Sunday during school terms from 9 am to 6 pm such periods to commence on the second Sunday of each school term;
(ii)For the second half of each short New South Wales school holiday period from 6pm on the Friday proceeding the middle weekend of the holiday period until 6pm on the last Friday of holiday period;
(iii)For a two week block during the New South Wales Christmas school holidays each year and being from 6pm boxing day until 6pm 9 January.
(b)Whilst so ever the child is residing outside of the Sydney metropolitan area;
(i)For the second half of each short Victorian school holiday period from the second Friday thereof and until the last Friday of holiday period;
(ii)For a 14 day block period in each Victorian Christmas school holiday period and being
A.For the school holidays commencing December 2012 and each alternate year thereafter for a 14 day block commencing on the day after school breaks up and concluding 14 days later (and which in 2012 would commence 22 December, 2012 and conclude 5 January, 2013); and,
B.For the school holidays commencing December 2013 and each alternate year thereafter for a 14 day block period to commence on the third last Sunday and conclude on the last Sunday of the school holidays;
and with respect to the above periods X shall travel from Melbourne to Sydney and from Sydney to Melbourne at the commencement and conclusion of each period respectively and to depart each airport on a flight at or approximate to 6pm.
For the purpose of implementing the above orders as to X’s time with the applicants if she resides the Sydney Metropolitan Area, one of the applicants or their agent is to collect the child from the father’s residence and return the child to the father residence.
For the purpose of implementing the above orders as to X’s time with the applicants when X is residing outside the Sydney Metropolitan area;
(a)The applicants or either one of them, are to provide to the father by ordinary pre paid post at Property V or email at (omitted) the child’s air travel itinerary to Sydney, paid for by the applicants, no later than 28 days prior to the booked departure date
(b)The Respondent is to deliver the child X to the airport from which she is booked to travel to Sydney in time to ensure that she is able to board the flight booked for her by the Applicants or either one of them and is to do all acts necessary to ensure that the child boards the flight.
(c)The applicants or either one of them is to collect the child from Sydney airport on her arrival there for the purpose of commencing time to be spent with them.
(d)At the conclusion of their time spent with the child the applicants or either of them are to do all acts necessary to ensure that the child is delivered to Sydney airport in time to board the return flight and are to ensure that the child boards the return flight
(e)Should the father fail to place the child on the flight to Sydney as provided for herein the father is to pay the applicants the amount of the airfare lost and is to do all things necessary to ensure that the child is forthwith delivered to the Applicants or either of them for the purpose of them spending time with the child and the child with them including booking a fresh fare for travel that day or the next and X’s time with the applicants shall extend by such period as is necessary to ensure that X spends an equivalent period of time with the applicants as these orders provide.
(f)Should the applicants fail to provide the flight ticketing details within the time period provided for in these order the Respondent is not obliged to provide the child to the Applicants for the purpose of the child spending time with them on that occasion.
In the event that the father should change his and X’s place of residence to any place other than the Sydney metropolitan area or Victoria then the reference to school holidays in the above orders shall thereafter be taken to refer to school holidays for the State or Territory in which X is then residing
The Respondent shall do all acts and things necessary including dialling the phone number to facilitate, cause and ensure that the child X telephone the landline telephone number of the second applicant Ms Dalley. being number (omitted) on each Sunday between 5pm and 6pm.
All parties are to advise the other in writing or via email of their current residential address and contact number and email address and are to advise the other of any change of residential address, phone number or email address at least one week prior to any proposed change.
The Father shall forthwith sign all documents and do all acts and things necessary to provide to the Principal of the child’s current school and any future school attended by her an irrevocable authority in writing requesting the Principal to arrange to forward to the Applicants copies of the child’s school reports and any information relating to the child progress at school and/or requested by the applicants and:.
(a)In the event of the child changing school the father is to provide an irrevocable authority in the same terms to the Principal of the child’s new school.
(b)The father is to provide to the applicants a copy of any irrevocable authority executed pursuant to this order within 72 hours of its execution.
The applicants and the respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the children X born (omitted) 2004 (female) from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
The Commissioner of the Australian Federal Police is requested to take all necessary steps to immediately place the said children name on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia and, further the Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia are requested to:
(a)Maintain an airport watch of the said children on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.
(b)Assist in the implementation of, and give effect to, these orders.
Each party is to notify the other promptly of any major medical illness or hospitalisation suffered by the child including details of treatment by medical practitioners.
All parties are restrained from denigrating the opposing party or causing any third party to denigrate the opposing party, in the present and hearing of the child.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
NOTATIONS:
For the Easter 2012 school holidays and not withstanding anything to the contrary expressed above, X shall spend time with the applicant from 30 March to 6 April 2012 inclusive and in accordance with orders made 30 March 2012.
The Independent Children’s Lawyer is not obliged to make any application for contribution of costs and accordingly no such application has been made nor adjudicated upon.
Pursuant to the Family Law Act 1975 (and subject to the balance of these orders) Mr Valentine is the sole person entitled to exercise parental responsibility for X as X’s sole living parent.
X presently resides with her father in the Melbourne area and the father intends to continue to reside in that area and with respect to same no restraint upon the father’s place of residents (other than through the requirement to keep the applicants advised of that address) is included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Lacerra and Dalley & Valentine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2473 of 2011
| MS LACERRA & MS DALLEY |
Applicants
And
| MR VALENTINE |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing parenting applications with a child X, born (omitted) 2004. X is shortly to turn eight years of age.
The applicants in the proceedings are X’s maternal grandmother and maternal aunt. The respondent to the proceedings is X’s father. Regrettably, X’s mother Ms V is deceased having passed away on (omitted) 2011. The circumstances of Ms V’s demise have some significance at least as regards the attitudes that have been formulated between the various adults who remain.
Ms V died of cancer, and after a lengthy period of illness. There are some real issues giving rise to and founding hostility between the parties as a consequence of a number of treatment decisions that would appear to have been made and which have found favour or ill-favour with one or other of the adults.
Material considered
Each of the parties and the Independent Children’s Lawyer have provided a case outline document which has enumerated, at least as regards the applicants and the Independent Children’s Lawyer, the material to be read and considered.
In the applicant’s case I have read and had regard to an affidavit by each of the applicants together with an affidavit of Ms L. I have also had regard to the amended initiating application filed by the applicants on 24 August 2011, and which has set out the relief sought at that time by the applicants, and which has been the subject of some slight variance during the course of the proceedings.
In the father’s case I have read, and considered the affidavits which he has requested to be read being an affidavit of Mr Valentine filed on or about 8 June 2011, a further affidavit of 19 July 2011, and an affidavit sworn or affirmed on 28 September 2011 and filed 12 October 2011.
Some controversy has arisen between the parties as regards the filing, non-filing or late filing of material.
The proceedings have come before the Court for final hearing somewhat more expeditiously than recent experience would suggest possible. The proceedings were commenced by application filed on 3 June 2011, and were listed for, and heard over two days, being 29 and 30 March 2012.
At the time that the proceedings were commenced relief was sought by the applicants which would have seen, X, who was then residing in the Sydney metropolitan area with her father, spend time with the applicants each alternate Sunday from 9am until 6pm together with a period of one half of school holidays. Further, additional orders were sought by an amended application filed 24 August 2011.
The father has throughout the proceedings opposed the relief sought by the applicants.
It is to be noted, and it is an issue of some significance and a credit to the applicants and their advisors that the applicants have never sought orders either for parental responsibility and have not proposed other than that X continue to live with her father as her surviving parent.
The proceedings had been listed for trial by orders made by Henderson FM on 12 October 2011. At that stage the matter was listed for hearing for 16 and 17 February 2012, which dates subsequently were administratively adjourned as a consequence of out-of-registry commitments. The matter was then listed for the trial dates indicated above.
Directions were made by Henderson FM for the filing of material, and which directions required that each of the parties file and serve all supporting affidavit material by 16 December 2011.
The material filed by the applicants was substantially late having been lodged with the Court on 14, 19 and 20 March 2012 respectively. Material was not filed in the father’s case at any time after the filing directions made by Henderson FM. An extension to the required date for filing had been granted on 15 March 2012 at which time the proceedings had been relisted to deal with objections to a number of subpoena. Time was extended, so that Mr Valentine was required to file and serve by close of business 21 March 2012.
Some time was spent in submissions by the parties as to the material to be considered.
As parenting proceedings governed by Division 12A, I have determined to allow and admit all of the material which each of the parties has identified, and subject to the application of the principle rule of evidence as set out in s.56 of the Evidence Act1995 being the relevance of the material contained therein.
A substantial volume of material filed in the proceedings would appear to have little relevance, direct or otherwise, to the future care and welfare arrangements for X. However, the material that is filed does not, to the extent that it may not be seen, perceived, or conceded as relevant, prejudice either party as the same applies on both sides of the ledger.
What is abundantly clear from the material, however, and as set out in the chronology of events filed by the applicants, is that X has, since her mother’s death, lived with her father, and prior thereto had lived with either the mother, or her extended family, or with the mother, father, and the mother’s extended family.
The maternal family has had a substantial, extensive, and significant involvement in the care and upbringing of this little girl. That, no doubt, gives rise to some of the angst expressed between the parties in relation to these proceedings, but does not in any real way impact upon the determination to be made by the Court, or indeed, this little girl’s best interests.
During the course of the hearing, minutes of order were tendered by each of the applicants and the respondent setting out further orders proposed by them. A substantial document, Exhibit ‘A’, was produced by Counsel for the applicants, and which set out orders proposed by the applicants. It was one of a number of drafts of such a document, and was designed and intended, and tendered on the basis of expressing that which was agreed between the parties as well as the remaining issues of judiciable controversy between them.
In the father’s case, a document Exhibit ‘B’, was tendered which set out the order and the wording proposed by the father with respect to the resolution of an issue of overseas travel which had loomed large as a matter of some significance between the parties.
As I have indicated a chronology of events was also provided by the applicants, and I adopt that chronology within these reasons as regards the factual background between the parties.
Chronology of Events
| 24.12.1960 | The 1st applicant, Ms Lacerra (X’s maternal aunt) was born in (omitted) (now 51). She was the sixth born of seven daughters. The youngest daughter was Ms V (X’s mother). |
| 1979 | The 1st applicant arrived in Australia with her mother and sisters and commenced to live in Brisbane. |
| 1982 | The 1st applicant married and moved to Sydney with her husband. |
| 1987 | Ms V and her mother Ms Dalley, 2nd applicant) moved to Sydney to reside with the 1st applicant and her family. |
| 12.2003 | Ms V was three months pregnant to Mr Valentine (the respondent) and a party was organised in accordance with (omitted) tradition. Subsequently the respondent visited Ms V more regularly until X was born in (omitted) 2004. |
| 4.5.2004 | The child, X, was born to Ms V and the respondent (now 8 years) |
| 12.2004 | When X was about seven months old Ms V was diagnosed with breast cancer. |
| 1.2005 | Ms V had her first surgery. |
| 10.2005 to 7.2006 | Ms V was in remission. |
| 2006 | Ms V was advised that she had terminal cancer. For a period up to this time Ms V had returned to work and the 1st applicant would collect X from the child care worker in the afternoon. |
| 2006 | X was admitted to (omitted) hospital suffering high fever and convulsions. The 1st applicant took time off work and spent the day with her. The respondent would come to the hospital at approximately 7pm. |
| 16.11.2008 | The respondent left Ms V’s home and commenced to reside at (omitted) College, (omitted). The respondent would pick X up from Ms V and drive her to school. Ms V would collect her until her health declined and then the respondent or his sister would collect her or if they were not available one of the maternal aunts would do it. Ms V or her sisters or her mother would prepare X’s breakfast and make her ready for school. The respondent would spend time with X on a Sunday and would collect her in the morning and return her in the afternoon. X did not spend overnight time with the respondent. |
| 9.12.2008 | Ms V executed Centrelink documents declaring that she had separated from the respondent and that he moved out on 16 November 2008. After the respondent left the home in 2008 the 1st applicant would take X to the GP when needed as Ms V was sick. |
| 9.2010 | Ms V allegedly said to the 1st applicant “I am going to write a book for X for her to know the truth. Mr Valentine will take the girl and all of the estate. He will block my family. He will not let X see the family” |
| 28.10.2010 | Ms V was admitted to hospital. The 1st applicant collected X from school and took her to the hospital. The respondent attended the hospital and took X into his care. She has been in his care ever since. |
| 31.10.2010 | Ms V went into a coma. The respondent attended the hospital with X. X saw her mother for a short time. X was subsequently taken away from the hospital by the respondent without saying goodbye to her mother. Ms V waited to see her in the evening but X was not brought back. She subsequently lapsed into a coma. |
| 2.11.2010 | Ms V died. |
| 6.11.2010 | Ms V’s funeral took place at (omitted) Cemetery. The respondent and X attended. |
| 20.11.2010 | The 1st applicant and the 2nd applicant saw X for 2 hours. |
| 24.11.2010 | The 1st applicant and the 2nd applicant saw X for 1.30 hours. |
| 5.12.2010 | The 1st applicant and the 2nd applicant saw X for 2 hours. |
| 11.12.2010 | The respondent failed to deliver X to see her cousin from Brisbane, having undertaken to do so. |
| 19.12.2010 | The 1st applicant and the 2nd applicant saw X for 3 hours. |
| 22.12.2010 | The 1st applicant and the 2nd applicant saw X for 1.30 hours. The 1st applicant asked the respondent if she could take X shopping for Christmas presents but he refused. |
| 23.12.2010 | The 1st applicant and the 2nd applicant saw X for one hour. The respondent refused to allow X to go shopping with her cousins for Christmas gifts. |
| 24.12.2010 | The respondent refused to allow X to attend the celebration of the 1st applicant’s birthday and family reunion. |
| 20.02.2011 | The 1st applicant and the 2nd applicant saw X for one hour. |
| 2.04.2011 | The 1st applicant and the 2nd applicant saw X for six hours. |
| 14.12.2010 | The 1st applicant and her sister were granted probate of Ms V's Will. |
| 16/19.12.2010 | The respondent and X were in Tasmania. |
| 26.12.10 to 12.2.11 | The respondent and X were in Perth. From Perth they travelled to (omitted). X did not return for the beginning of the school year. She never returned to her old school. It is believed that she has been subsequently enrolled at two different schools. |
| 7 to 24 April 2011 | The respondent took X to (omitted). |
| 5.5.2011 | The respondent took X to (omitted). They had not returned by 15 May 2011. |
| 3.6.2011 | The applicants commenced proceedings. |
| 12.06.2011 | The 1st applicant went to the respondent’s home to see if X was available to see her. It was the anniversary of her grandfather’s death which is an important social occasion. The respondent said to the 1st applicant in English “You go home. I do not want to see your face. You get out of my house”. |
| 8.7.2011 | Orders were made by consent and the proceedings adjourned to 31 August 2011. The orders provided for X to spend time with the applicant’s each Sunday from 9am to 6pm and from 9am on Monday 11 July 2011 until 5pm Thursday 14 July 2011 and at such further times as agreed between the parties. The orders also provided that the child should not be removed from the Commonwealth of Australia. |
| 11.07.2011 | The 1st applicant attended the respondent’s residence to collect X pursuant to the Court orders. Neither X nor the respondent were at the premises. X was not delivered to the 1st applicant as provided for in the orders. |
| 15.07.2011 | The proceedings were relisted before the Court. A child inclusive conference was organised for 9am. The respondent did not attend Court. A solicitor contacted the Court and requested an adjournment on behalf of the respondent. A memorandum was issued by the Family Consultant referring to fears for the child’s safety. The proceedings were adjourned to 19 July 2011. |
| 19.07.2011 | Orders were made and the matter listed for interim hearing on 31 August 2011. The orders inter alia provided that the orders of 8 July 2011 providing X should spend time with the 1st and 2nd applicants each Sunday should continue. |
| 31.08.2011 | Interim orders were made by consent. The orders provided inter alia that X spend time with the 1st and 2nd applicants each alternate Sunday from 9am to 6pm and from 10am on Sunday 25 September to 10am on Sunday 2 October 2011. The orders also provided for block contact in the December/January period. The respondent did not inform the applicants or the Court that he was in the process of moving to Victoria. Following the making of the Court orders the respondent informed the 1st applicant that X “swims between 3.30pm to 6.30pm during the weekday” which conflicts with the times of between 5pm and 6pm in which the Court order states that the applicants can contact X. |
| 25.09.2011 to 2.10.2011 | This weekend was the last time that the applicants spent time with X in accordance with the orders. |
| 29.09.2011 | The respondent swore an affidavit indicating that he and the child had moved to Victoria on 8 September 2011. The respondent did not advise the applicants that he had moved. |
| 12.10.2011 | The matter was again before the Court. The alternative Sunday contact was suspended. |
| 21.12.2011 to 24.12.2011 | The applicants were not able to spend time with X in accordance with the current orders. |
| 5 to 20 January 2012 | The applicants did not have contact with X, the respondent having sent an email on 22 December 2011 saying that he would be making arrangements for the period. |
Issues in dispute
From the outset of the case, on day one of the trial, it was made clear that a significant number of issues between these parties were no longer the subject of live controversy. It appeared, by day 2, that the significant issues in dispute between the parties comprised:
a)Whether, in the event that X were residing in the Sydney metropolitan area, which she is not currently, and nor is it proposed that she will in the foreseeable future, X’s time with the applicants would occur each alternate Sunday, or each third Sunday;
b)Whether school holiday time that X spends with the applicants was to be for five nights or seven nights in short school holiday periods, and whether it was to be for 10 days or two weeks during the Christmas school holiday periods;
c)Whether any specific provision was to be included, whether as part of a block period of time, or as a separate and discrete order, with respect to X spending time with the applicants on or about Christmas Day;
d)The manner of wording of an order with respect to telephone communication between X and the applicants. Ultimately, it would appear that agreement was reached between the parties with respect to that issue;
e)Whether X would be placed upon the airport watch list, and whether orders by way of injunction would be made which restrained her removal from the Commonwealth; and
f)The manner in which a mutual non-denigration order was to be worded and expressed
g)The manner in which material, with respect to X’s education, will be received by the applicants and in particular whether it will be obtained by the applicants from X’s school or passed by the respondent to the applicants after he has received it from her school.
Exhibit ‘B’, as I have referred to, went to the issue of overseas travel. Mr Valentine, most vociferously opposed the making of any order which imposed a restraint upon X’s removal from the Commonwealth, or which placed her upon the airport watch list to give effect and force to any such order. In the alternative, it was proposed by Mr Valentine that there would be no restriction upon his travel with X, subject to his provision of 28 days notice prior to any intended period of travel, the travel not occurring during a school term, and not occurring in such a fashion that it would impede or reduce the time that X was scheduled to spend with the applicants.
Those being the judiciable areas of controversy, the issues between the parties were limited. Notwithstanding that limitation, and as a consequence of a number of issues, not the least language difficulties with respect to one of the applicants, the hearing of the proceedings occupied its full two days.
Evidence
The evidence that relates to the issues in dispute is very limited compared to the quantity of material in fact filed. What is perhaps the most telling evidence with respect to those issues, and relating both to school holiday periods, and whether there are to be any orders with respect to this child being placed on the PACE list related to that which has transpired with respect to time arrangements whilst the matter has been before the Court.
Between the passing of X’s mother and interim orders made by the Court early in the existence of the matter, there was no time spent by X with the applicants other than time which occurred in the presence and supervision of the father. Orders were then made which provided for periods of time that X was to spend with the applicants.
Difficulties arose following the first set of orders made on 8 July 2011. Orders were made on that occasion which provided that X would spend time with the applicants each Sunday from 9am to 6pm and for a block period from 11 to 14 July 2011.
What transpired is that following the making of those orders, and prior to the adjourned return date of the proceedings being 31 August 2011, the father left Sydney with X for Melbourne. That travel, and the basis for it, is the subject of the affidavit filed by Mr Valentine on 8 July 2011. As a consequence of those actions, the periods which had been ordered on that occasion did not occur. Further, the parties were to be engaged in a child dispute conference with a family consultant which Mr Valentine, then being absent from Sydney, did not attend in person. Mr Valentine was contacted by telephone, and it is suggested both in the applicant’s evidence, and as alluded to in the Child Dispute Conference memo, that the father expressed through words communicated by him to the family consultant a sentiment which caused the Family Consultant some concern as to the child’s safety.
As a consequence a notification was made by the Family Consultant. That is to some extent explained in the affidavit filed by Mr Valentine to which I have referred, and which makes clear that Mr Valentine was, at that time, and whether directly as a consequence of the proceedings, or a combination of factors, in a highly distressed and emotional state. In any event, Mr Valentine ultimately returned to Sydney, the proceedings were been relisted, and a number of orders made. Thereafter, time occurred at least for some of the periods of time for which orders were made. This included block and overnight periods of time from 16 to 19 July.
The matter returned to Court on 31 August 2011. On that date both parties were present and legally represented, and the Independent Children’s Lawyer having been appointed on an earlier occasion was also present. Orders were negotiated between the parties, and ultimately orders made by consent. Those orders provided that the applicants would spend time with X each alternate Sunday from 9am to 6pm, and for periods of time of a specified nature during school holidays. That included a period from 21 to 24 December 2011 inclusive and from 5 to 20 January 2012 inclusive. Those orders were intended to provide, as it were, a holding pattern prior to the hearing.
It was otherwise noted on that occasion that the proceedings had been adjourned for further mention on 12 October 2011 to:
“Allow the father to determine if he will relocate to Western Australia, and for the parties to attend a Legal Aid mediation conference.”
What transpired was that within about a week of those orders being made and on or about 8 September 2011, Mr Valentine, together with X, left Sydney and relocated permanently to Melbourne. As a consequence the orders fairly immediately fell into abeyance. The orders provided that the applicants were to collect X from the father’s home at the commencement of each period of time, and to return her to the father’s home at the conclusion of each period of time.
During his cross-examination, Mr Valentine, was clear in his view that the applicants had “breached” the orders by not attending at his home to collect X. For a period of time after his removal, and it would appear indeed until the mention of the proceedings on or about 12 October 2011, Mr Valentine, continued to transport X from Melbourne to Sydney each alternate weekend for the purpose of spending day visits with the applicants.
The orders of 12 October 2011 provided, inter alia “The order for the child to attend Sydney each fortnight is suspended as it is too onerous on the child.”
Quite clearly, at that point in time, however, Mr Valentine, was aware of the order and the importance of compliance therewith, and did not seek, as he subsequently did following the making of those orders on 12 October 2011 to assert, or require that it was required of the applicants to travel to his home then in (omitted) in Melbourne for the purpose of collecting X.
Mr Valentine’s evidence during cross-examination concerned me and I expressed to Mr Valentine's Counsel involved that concern being that same represented some degree of disingenuity particularly in light of that sequence of events.
In any event, what passed is that from October 2011 until the hearing of this matter no time occurred between X and the applicants. That is so, notwithstanding, that for the period that had been ordered to occur from 21 to 24 December 2011, X was for a significant portion, thereof, in Sydney. No attempt was made by Mr Valentine to advise the applicants of his presence with X in Sydney, and no time in fact occurred.
Mr Valentine’s evidence was clear that he was only in Sydney for the purpose of visiting briefly with members of the paternal family before travelling on to the Gold Coast where he planned to spend Christmas with X and subsequently did. Mr Valentine’s evidence, though somewhat unclear, would suggest that he was then for the majority of the school holiday period, and in all probability for most if not all of the second block period of 15 days that had been ordered, being the period 5 to 20 January 2012, on the Gold Coast. Mr Valentine had indicated that he had arrangements in place, so that should anybody attend at his home in (omitted) for the purpose of collecting X that he would be notified and would arrange for X to be returned to Melbourne wherein she could be collected.
That again was evidence that caused me some concern both as to the ability, and willingness of Mr Valentine to facilitate the child’s relationship with the applicants, or indeed to comply with the spirit if not the expressed terms of orders made by the Court, and as reflecting poorly upon the insight demonstrated by him as to X’s strong relationship, which would otherwise appear clear from the evidence, and not significantly disputed by Mr Valentine’s evidence, between X and her maternal family, it being remembered that X has experienced the great loss and grief of her mother passing away.
It is not sought by the applicants, as I have indicated, to change the reality of X’s living arrangements wherein she lives with her father. What is sought by the application brought by the applicants is for their relationship with X to continue, and for that relationship to be facilitated through periods of time spent with her.
What is also abundantly clear from Mr Valentine’s evidence, and is set out by him in his material, is that both he and X have, and as referred to in paragraph 2 of Mr Valentine’s affidavit filed 12 October 2011 “been in grief”.
The grief that has flowed to Mr Valentine from these proceedings is abundantly expressed by him in his affidavit material and his oral evidence. He would appear to harbour a significant degree of distrust, if not ill-feeling, towards the applicants, and in particular the maternal aunt. That is extended to and includes the instigation of what would appear to be Family Provision Act (NSW) 1982 proceedings contesting the will and distribution of the estate of X’s deceased mother.
It certainly extends to and includes as set out in each of the three affidavits to which I have referred, a jeremiad of complaints and concerns raised by the father in relation to the maternal family as a whole but particularly focused upon the maternal aunt.
The fact that X has been grieving and I wholeheartedly accept that she has, the loss of her mother is all the more tragic in the context of this case in that X has had little ability to grieve with members of the maternal family.
Shortly after her mother’s death she was passed into her father’s full-time care. That, of itself, is not a criticism of any person and indeed represents a normal and natural transition. However, it has then had the affect of substantially curtailing relationships which she has previously enjoyed at a fulsome level and indeed involved her physical separation and termination of any real communication between X and a number of members of her maternal family with whom she had in fact lived prior to her mother’s death.
That perhaps represents a blinding of Mr Valentine, no doubt caused by his grief, towards this child’s real emotional needs at that point in time. For her to have been able to express her grief and to share it and have it addressed and comfort and support provided by her maternal family would have been desirable but is now an opportunity that is lost and passed.
There is no issue between the parties, as I have indicated, regarding a broad range of matters that otherwise in the proceedings did not appear agreed at the commencement of the trial.
However, the judiciable issues to which I have referred have been more than enough to occupy a significant hearing time and dispute between these parents.
Each of the applicants was required for cross-examination. The maternal grandmother was cross-examined briefly and with the assistance of an interpreter. The maternal aunt was cross-examined at slightly greater length and without the need for an interpreter. Mr Valentine was also cross-examined.
The evidence given by each of the applicants during their cross-examination did not give rise to any significant concern or issues of controversy. The most substantial issue that arose and which was addressed in Mr Valentine’s affidavit material was a criticism not only as regards to the maternal family’s involvement in X’s care, prior to her mother’s death but also the practices in which the maternal family had engaged relating to the mother’s illness and her subsequent passing as well as their treatment and approach towards death generally.
It was suggested by Mr Valentine that he had real concerns that X was exposed to practices such as an altar being created and ashes or bones or a combination of the two, of deceased relatives, placed thereupon so that prayer might occur.
The evidence of the maternal grandmother, Mrs Dalley, in particular is that she is a practising Catholic. It would appear that all of the parties are adherents to the Christian faith in one form or another.
However, the continuation of the cultural practice that was referred to and spoken of by Mrs Dalley in both her affidavit evidence and her evidence whilst cross-examined would suggest a combination of both traditional faith and practices together with her Catholicism.
I made clear to Counsel for all parties during that portion of the evidence that I did not experience any difficulty with the cultural practice surrounding death, demonstrated by Mrs Dalley or the maternal family, notwithstanding that this was a matter of real significance to Mr Valentine.
Such cultural practice would appear to be consistent, if nothing else, with ss.60B and 60CC of the Family Law Act as well as the International Convention on the Rights of the Child and other international treaties which create obligations upon Australia as a signatory and which recognise the importance of cultural and indigenous practice.
In any event, it would not appear to be suggested that there has been any significant emotional harm or otherwise to X as a consequence of either engaging in or being exposed to those practices and particularly noting that one can only infer from the orders proposed by Mr Valentine that he accepts that there is a relationship between X and her maternal family which can and should be extended and continued. The only dispute between the parties is the manner in which that occurs and whether it includes specific events such as Christmas Day and whether it is for longer or shorter periods of time.
The basis upon which Mr Valentine opposed longer periods of time was unclear. Mr Valentine, in his evidence, was somewhat tangential in his answers and in a fashion which did not belie his education and training and was not suggested by any difficulty with language. Mr Valentine, in the concluding portions of his cross-examination, sought to assert that he had taken and treated the maternal family as a matter of some real priority in the events since the death of X’s mother. His actions would not appear to bear that out.
Mr Valentine’s evidence was typified by and large with the assertion by Mr Valentine, which I accept is reflective of a feeling of entitlement as the sole surviving parent of X. Clearly, Mr Valentine, in his opposition to the manner in which, for instance, orders for the provision of educational information and materials was sought and proposed by the applicants suggested that he felt the need and had the entitlement to be in charge of the dissemination of such information.
Similarly, with respect to travel, Mr Valentine was clear that as the person with sole parental responsibility, there being no contest in that regard, that there should be no restriction upon his entitlement to travel with X. They are matters that I will deal with and canvass in full, shortly.
Specific issues in dispute between the parties
I propose shortly to deal with the legislative pathway and examine the orders that should be made. However, I wish to outline and make clear in more detail the judiciable issues identified above and in particular the matters that would appear relevant and germane to those issues.
As I have indicated, there is dispute as to whether school holiday time will be five or seven days in short holidays and 10 days or two weeks in longer holidays and whether these will include Christmas Day or where there is a specific provision or otherwise.
Those issues would not appear, by and large, to have any real evidential basis which would suggest that one is preferable to the other.
At the conclusion of evidence, shortly before 6pm on the last day of trial and the Victorian school holidays having commenced and X being present in Sydney, I was called upon to make a separate and discrete determination with respect to what would occur during the present school holidays. Orders were made by me which provided that X would pass into the care of the applicants that evening by 7.30pm and would remain with the applicants for a period of one week before returning to her father the following Friday.
There is no issue in relation to travel whilst X is residing outside of the Sydney metropolitan area and on the basis that X will travel as an unaccompanied minor by plane between Melbourne and Sydney. I have no difficulty or qualm in making orders in that regard, noting that each party proposes that this would be so. Further, I note Mr Valentine’s evidence that this is a little girl who derives particular joy and enjoyment from plane travel and as expressed by her father to particularly enjoy travelling both within and outside of Australia.
Since the death of her mother and in the last nine months since these proceedings have been on foot, it would appear clear that X has had a number of trips to Victoria, West Australia and Tasmania and prior to X’s inclusion on the airport watch list, had partaken of a number of overseas trips including to Vietnam and Singapore.
What is also clear from Mr Valentine’s evidence is that as a consequence, no doubt, of the PACE order that has been in place on an interim basis, X has not travelled with him outside of the Commonwealth but that he has travelled outside of the Commonwealth. The care arrangements for X during these periods of time were not placed before the Court.
Presumably, she was cared for by members of the paternal family. It would not appear to be the case nor suggested to be the case that any approach was made of X’s maternal family to provide care for her during such absences, nor is there any evidence before the Court that (a) the maternal family was advised of the trips and the fact that X would be cared for by others or (b) the number of trips or their duration that have occurred.
Those issues have some connection, in my mind, to the issue of overseas travel generally and in particular whether X is to be included on the PACE list. The absence of information in the past, combined with the sense of entitlement demonstrated by Mr Valentine’s evidence would appear to be the basis or the most substantial basis upon which it is proposed by the applicants that X would remain on the PACE list.
There has been some discourse as to the legislative basis upon which such an order would be made and I will deal with that shortly.
In relation to the balance of issues they are, by and large, a question of wording rather than any substantive issue as to the end result of what is to be achieved by the order.
Legislative pathway
In any parenting application the Court is required to commence, as the Full Court has made clear in Goode & Goode (2006) FLC 93-286 and Marvel [2010] FamCAFC 101 and as the High Court made clear in MRR & GR [2010] HCA 4, by considering the objects and principles of the legislation as set out in s.60B.
Section 60B, to a large extent, codifies and domestically enacts certain portions of the International Convention on the Rights of the Child. The objects provide that the Court should ensure that the best interests of children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their life, protecting children from physical or psychological harm, ensuring that children receive adequate and proper parenting and ensuring that parents fulfil their duties.
The principles underlying those objects provide that except where it is shown to be contrary to a child’s best interests, that children have a right to know and be cared for by their parents, have a right to spend time on a regular basis and communicate with their parents and other people significant to their care, that parents should share duties and responsibilities, should agree about future parenting and importantly, that children have a right to enjoy their culture, including the right to enjoy their culture with other persons who share that culture.
The objects and principles, it is trite to say, are largely focused upon:
a)children’s rights; and
b)parents.
The only portions of the objects and principles which are not directly referable to biological parents are the objects and principles that require that children should receive adequate and proper parenting (which can be construed to apply to any person not only a parent) and the requirement that the Court consider the child having a right to spend time on a regular basis and communicate with parents and other people significant to their care.
I am most assuredly satisfied, in the context of this case, that the applicants are persons who are significant to X. As I have indicated, she had spent periods of her life living in the same household with them and has since her birth and until her mother’s demise had regular, if not, daily interaction with each of the applicants.
I am also satisfied that the applicants are persons entitled to apply for a parenting order. Section 65C provides that an application of parenting orders can be made by a grandparent or any other person concerned with the care, welfare and development of the child. I am satisfied that the applicants meet one or both of those criteria. Section 64C makes clear that a parenting order can be made in favour of a parent or others.
Having considered the objects and principles which are not part of the substantive law to be applied to the facts of the case but which simply inform the interpretation and application of same), I am required to consider s.60CA which reminds the Court that in all that the Court does, regard must be had to the best interest of the child as the paramount consideration.
The Court is then required to turn to s.61DA and the presumption of equal shared parental responsibility. It is not asserted and appropriately so, that the presumption can or should apply in this case as between the parties. The presumption applies only between parents and, accordingly, as the sole surviving parent, Mr Valentine is entitled to the benefit of the presumption of parental responsibility in his favour alone. No order is sought which would otherwise interfere in the allocation of parental responsibility and it will, as a matter of law, lie with Mr Valentine.
That does not mean however, that an order cannot be made which impacts upon day-to-day care, welfare and development of the child. Indeed, parental responsibility, as defined in s.61DA and s.65DAC, does not include responsibility for making day-to-day decisions nor does that legal position preclude the Court making orders that would temper the free and unfettered exercise of parental responsibility by a parent such as to require for instance the provision of information regarding medical or schooling issues. They are live issues between these parties.
As the presumption does not apply, the Court is not required or mandated to consider s.65DAA to the extent that it obliges the Court to consider in order, equal and substantial and significant time before considering any other time arrangement.
In any event, the Court remains bound by the dual test of what is reasonably practical by reference to s.65DAA(5) and what is otherwise in the child’s bests interests by reference to s.60CC.
I propose, as commented upon by the Full Court and by a number of single-judge decisions, for instance see Murphy J in Pitken & Hendry [2008] FamCA 186 to consider reasonable practicality as part of the overall consideration of what is in the child’s best interests pursuant to s.60CC.
In turning to s.60CC, I am required to commence by considering the primary considerations of:
a)the benefit of 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.
There is no serious suggestion in this case and to the extent that it might be inferred there is no evidence to support such inference or allegation that this child needs protection from exposure to physical or psychological harm in the care of any of the parties. Accordingly, that factor is not in play. Similarly, the primary consideration of the benefit of the child of having a meaningful relationship with both of the child’s parents is not and cannot be in play in this case as the proceedings are not between the child’s parents.
That then leaves the Court to turn to and consider the additional considerations. As was observed by Carmody J in Dylan & Dylan [2007] FamCA 842 the additional considerations are not secondary. They both inform the primary considerations, if they were to apply, and stand alone as considerations in their own which can and in this circumstance do assume significance in their own right.
I propose to consider each of the additional considerations in turn.
Views
There is no clear or specific evidence before the Court in relation to X’s views whether in support of or in opposition to the orders proposed by either party. Neither party has made application for the preparation of a s.62G or Part 15 report and consideration has been given to the benefit that this might provide evidentially and a positive determination made that it is unnecessary.
That is not to suggest that the provision of expert social science opinion is not a benefit in each and every case. The ordering of a report is a matter which requires the allocation of substantial court resources. Each of the parties have been of the view, as has the Court that the child’s best interests can and would be adequately and properly addressed through the evidence of the parties alone.
To the extent that there is evidence with respect to this child’s views, it would suggest that X enjoys an excellent relationship with her maternal family as well as with her father and certain members of the paternal family. The father asserts that X enjoys an excellent relationship with all members of the paternal family but there is no more specific evidence as to how that relationship is manifested or facilitated.
I am satisfied that there is nothing in the evidence that would suggest that X’s views are contrary to the orders proposed by the applicants.
Nature of the relationship of the child with each parent and other persons
Clearly I am satisfied, as would be apparent from the above, that X enjoys an excellent relationship with her father and with each of the applicants.
There is no controversy on the father’s case that X enjoys an excellent relationship with her maternal grandmother. As I have indicated the focus of the father’s ire would appear to be largely the maternal aunt. There would not appear to be any basis in reality from that which is before the Court by way of evidence to suggest any rational basis for same.
Willingness and ability of each of the child’s parents to facilitate and encourage a close relationship
In this circumstance, the only parent upon whose willingness and ability one can focus is Mr Valentine. I am concerned that Mr Valentine has shown a lack of willingness, or ability to facilitate X’s relationship with the maternal family, notwithstanding at different times orders being made by the Court requiring same. That is a matter of some significance both as, it has led to a disruption in this little girl’s relationship with the applicants, and leading up to the hearing this led to a period of three to four months when there had been no real communication, and certainly no time between this little girl, and her maternal family from whom she has been substantially estranged, and at a time when such estrangement would maximise the potential for distress to her.
That is not to suggest that X’s father is not, and cannot be supportive, and important to this little girl in processing her grief over the death of her mother. However, the termination of her relationship and communication with the maternal family in those circumstances is highly regrettable, and does Mr Valentine no credit. His lack of willingness to facilitate the relationship, including when there have been orders, and including the regrettable and disingenuous evidence given by him regarding the Christmas period, and the “breach” of the orders by the applicants in not travelling to his home in Victoria to collect X, notwithstanding his unilateral move with no forewarning. I am satisfied Mr Valentine was aware and intended to make his and X’s move at the time that he consented to orders which provided for periods, including block periods of time between X and the applicants and this is, again, a discredit to him.
The disingenuous explanation provided is made all the more inexplicable by reference to the fact that Mr Valentine is, without having (occupation omitted).
Likely effect of change
I am satisfied that there would be a positive change for X if she were in a position to have strong and clear and precise predictable periods of time with her maternal family. It will allow her to continue to associate with and have an appreciation and understanding of that half of her make-up.
It is not possible, most unfortunately, for X, to continue her relationship with her mother, other than in a spiritual and temporal fashion, and that relationship is both positive to X, important to her emotional development, and best facilitated through regular ongoing time with her maternal family.
Practical difficulty and expense
There is significant practical difficulty whilst so ever X continues to reside out of the Sydney metropolitan area. To the credit of the applicants, there is no application which seeks to change or restrain X’s place of residence. She will continue to live with her father will do so where ever within the Commonwealth of Australia her father chooses to reside. That will be subject, however, to orders made as would appear to be consented to by both all parties requiring that each keep the others advised at all times of their residential address.
The practical difficulty and expense is largely overcome in circumstances whereby X continues to reside with her father outside of New South Wales, through being of an age, and the parties agreeing that she can and will travel as an unaccompanied minor, and the proposal of the applicants, which is not in anyway put into controversy by the respondent, that they will meet the cost of such fares.
The capacity of each of the child’s parents, and any other person to provide for the child’s needs including emotional and intellectual needs
I am satisfied that all of the parties in this case are able to meet X’s needs.
X is a fortunate little girl in the sense that all of the adults who care about her and love her, and love her sufficiently to be engaged in proceedings before the Court, are capable of and willing to provide for her needs. The concern I have, however, relates to the capacity of Mr Valentine to have recognised the impact of his past actions upon X’s ability to grieve, and to continue to experience as a living memory, her mother and to do so by having time on a regular basis with her maternal family.
Maturity, sex, lifestyle and background of the child
X is a little girl who is dependent on others for her nurture and support and to a large extent her world view. To that end the attitude of each of the parties towards their responsibilities in providing for this little girl is of more relevance than it might otherwise be, were she older. I am satisfied that the orders proposed by either party would meet this little girl’s present level of cognisance and understanding, and that orders proposed by either would benefit her. It is a question of degree and the scope of benefit.
On one hand, it is submitted that Mr Valentine, as the sole surviving parent, and thus the person with sole parental responsibility, should, as a matter of right, have his position recognised, and no orders made which would have the potential to impact upon, or to curtail, his parenting of this child as he chooses and desires. There is some force to that submission.
The International Convention on the Rights of the Child, whilst not all portions of it are presently domestically enacted, is relevant to the interpretation and application of decision making in Australian Courts (See for instance Mabo v Queensland [1992] HCA 23, Minister of Ethnic Affairs v Teoh [1995] HCA 20 and B & B and Minister of Immigration & Multicultural and Indigenous Affairs [2003] FamCA 621)
The family unit is recognised as the fundamental unit of society and caution is urged in any interference with that family unit, or the exercise of authority therein without good reason. Such philosophy is recognised in international law and has been the subject of a number of attacks in international and overseas courts including the European Court of Human Rights (See for instance Glaser v The United Kingdom [2000] UCHR Application 32346/96).
However, the right of interference by state agencies, including courts exercising a proper judicial authority in determining disputes between parents and others, is inherently recognised in such instruments.
I am not satisfied that the Court should be urged to accept a position, and in fairness the father does not urge it with such vigour, whereby the Court would not interfere, or make any order that is contrary to a parent’s desire.
In the event that there were evidence, as is perhaps alluded to in written submissions prepared by Mr Valentine, but not prosecuted in the case, which would suggest that the parenting capacity of Mr Valentine would be impacted whether through grave unhappiness, dissatisfaction, or a failure or refusal to accept orders made by the Court, and to such an extent as to undermine his parenting capacity, the position might be different. However, no such evidence is presented.
I am satisfied accordingly that the interferences which are urged in either party’s case are matters of degree rather than matters of fundamental jurisprudence.
If the Child is an Aboriginal or Torres Strait Islander Child
The child is not from an Aboriginal, Torres Strait Islander background.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
That factor being focussed as it is, upon parents, is not relevant.
Family violence involving the child
There are some suggestions in the applicant’s case that family violence was perpetrated by the father. Those allegations are denied, and they have not been prosecuted with any vigour in the applicant’s case, nor cross-examined on, and accordingly I would have no regard to same by reference to the rule in Brown & Dunne.
Family violence orders
There are none at least as between these parties.
Whether it is preferable to make the order that will least likely lead to future proceedings
I am concerned that this factor has some greater relevance in this case than in many others.
Firstly, as regards the PACE list, and overseas travel issue, it is to be noted that orders of that nature are not designed to be made purely as an exercise of authority by the Court and without good reason. Such an order in a case such as this would be designed, at least in part, to avoid the need for future proceedings such as proceedings under the Hague Convention.
An order to place a child on the PACE list is nothing more, to my mind, than an order in aid of jurisdiction which is designed to both cement and encourage compliance, and to avoid circumstances arising through unilateral action which would preclude compliance with orders of the Court, as well as obligations created by the Family Law Act.
Beyond the PACE list issue, I am concerned that there has also been, in this case, what would appear to be an abundant and to some extent wilful non-compliance with orders made by the Court. There has been, at least, an engagement in action such as the perfectly lawful action by Mr Valentine of relocating from Sydney to Melbourne, in circumstances whereby it is done, if not with the intention of frustrating the operation of an order, no doubt with a very sure and certain knowledge that this would be the effect.
There is very little the Court can do to obviate against such matters arising in the future other than to make clear and specific orders at this time which are not capable of misinterpretation by a reasonable person.
Other facts and Circumstances
As regards other facts and circumstances, I note that s.65DAA requires a consideration of reasonable practicalities. These parties live some significant distance apart, being Sydney and Melbourne respectively. That can and will be addressed through the periods of time which are to be ordered being focussed on school holidays, and the travel arrangements to which I have referred.
These parties have some limitation on their current and future capacity to communicate. Indeed, communication is presently poor. To my mind that suggests that any arrangement which obviates against the need for communication between the parties, whilst that is not the optimum outcome for X, who would benefit from seeing these various people who love her co-operating and communicating with each other, is the best that one can do.
It is also to be noted that the factors set out in s.65DAA(5) are focused upon parents. I have had regard to those matters notwithstanding that this is a dispute between a parent and non-parents. I have considered those provisions by way of analogy, and for the sake of completeness to ensure that all matters which might otherwise be considered relevant are so considered.
I am satisfied fundamentally, however, that there would be a positive impact upon X of orders being enforced which allowed her to have an ample and appropriate relationship with her maternal family. It is only through the maternal family, or those of it who survive, that X can obtain an appreciation of that portion of her genealogy and biology and that which comprises her maternal side.
In relation to the specific judiciable issues between these parties as I have indicated I propose to turn to them.
As I have indicated the issue as to the amount of time that is spent in any holiday period would appear to be largely a matter of quantity. It is not suggested that it would be detrimental to X to have seven days rather than five, or the converse. It is put in Mr Valentine’s case that X has a number of other relatives including an extended paternal family, and accordingly there should be less time. Mr Valentine, in fact, in his evidence, had suggested that he is proposing that there be one third of those school holidays rather than one half, and in fact had opined that he felt that one quarter was more than adequate, but in the spirit of compromise was proposing one third.
It had been sought earlier in the proceedings, and on Mr Valentine’s application, that the paternal grandmother be joined as a party, so that the court might make an order in the paternal grandmother’s father. That application was appropriately refused by Henderson FM, and noting that there was no evidence before the Court to suggest that the paternal grandmother consented to, or sought such joinder, or that such joinder was necessary to enable the appropriate disposal of the proceedings.
In relation to the time that this little girl can and should spend with the maternal family, I am satisfied on balance that the period of one week is to be preferred. The time that will pass between each visit will be 10 weeks or so being each school term. The time that this little girl has, could, and should have spent with the applicants thus far has already, pursuant to the orders made on 31 August 2011, exceeded five days, or for that matter the 10 days proposed by Mr Valentine during the Christmas school holidays.
I am satisfied that the relationship between X, and the applicants, and the maternal family at large is of such strength, depth and affection that she would benefit from a continuation of those relationships. She has a large and broad extended maternal family, and the slightly greater period of time will enable her to more fully explore those relationships.
In relation to the Easter holidays, I propose, due to the manner in which the holidays fall as between NSW and Victoria, that it would always be the second half of those holidays. For the sake of completeness, and to avoid any dispute between the parties for the future, I propose that for the short holidays the time period always be the second half of each short holiday being the period that overlaps between the two states. For the holidays following in terms two and three they would appear at least for the next few years to be identical periods of time in each state.
As regards the Christmas Holidays, it is urged by the applicants that this would, at least each alternate year, include Christmas Day or some part of the Christmas festivity period. This is based not only on a secular enjoyment of that period but religious practice. Mr Valentine, for his part, opposes this and asserts that:
a)He is the sole surviving parent and it is a matter in which his will should have some force; and
b)X is not, and has never been, separated from him at Christmas, and that her relationship with her father is of such depth and strength that it would be detrimental to her if she were now separated.
I do not accept that this so. Whilst, these are not parents in dispute with each other, it is an argument commonly raised before the Court that a child has not ever been, and accordingly should not ever be, separated from a particular parent at Christmas time. However, that is something within an intact family that is easy to accommodate. When parties have separated, or in this case when the maternal and paternal family are fractured from each other, and with that fracturing continuing, and perhaps made worse through the Family Provisions Act proceedings, there is an impossibility in everybody, and including X, getting that which they desire.
There is no evidence to suggest that it is a matter of real significance to X as to whether she spends each and every Christmas with her father or not. I accept that there is some force to the position advanced by Mr Valentine, but I am also satisfied that there would be some real benefit to X of being able to spend periods of time with her maternal family for such special days. Whilst I have not specifically considered the provisions of s.65DAA(3) as regards the definition of substantial and significant time, I note that for both sides of this child’s family to be able to share in an event that is clearly of some significance to them, and to X, would be beneficial to her, and accordingly, I propose to order a sharing of same by including it in each alternate year as part of the block period of time that X will spend with the maternal family.
In relation to telephone calls, it is urged in the applicant’s case that there would be a specific time and date and specific mechanisms by which telephone calls can occur. There is some force to that argument particularly as there would appear to have been real difficulties in telephone communication occurring to date. Mr Valentine, proposes that there be no such restriction, and that there simply be an order that the applicants can telephone at any time that they wish. However, that does not create a legal obligation that X be available to take calls at any time.
In relation to the wording of provision for the supply of school and medical information, and in particular the provisions of school reports and the like, I am satisfied that such material should be obtained directly by the applicants from X’s school. Whilst, clearly it is an acceptable mechanism for information to be provided by the school to X’s father, and from X’s father to the applicants the father’s evidence does not provide him any support in that position. The father, when specifically cross-examined on those issues, indicated that he had not previously, and has not since the death of X’s mother and particularly since enrolling X in school in Victoria, provided any such information as he has had no legal obligation to do so.
Whilst making an order would provide such legal obligation there would be the potential for further disputation and thus possibly further proceedings in the event that this did not occur or did not occur in a timely fashion. That can be obviated, as s.60CC(3)(l) requires, through the making of an order which allows direct access by the applicants.
Mr Valentine had otherwise indicated that he did not wish this to occur as the applicants and particularly the maternal aunt had asserted that they were or she was the child’s guardian. It would appear that this is the term used by reference to the deceased mother’s will and in any event nothing has been pursued through these proceedings or through actions outside of these proceedings to suggest any acting upon such an assertion.
PACE list order
In relation to the most substantial issue between the parties as to whether this child is or is not to be included on the PACE list and orders and restraints which preclude overseas travel I note that this is an issue of interpretation of the legislation.
Section 65Y creates a criminal offence in relation to a child’s removal from the Commonwealth in the event that that child is subject to a parenting order. There is no specification within s.65Y as to the nature of the parties to those proceedings, i.e. whether it applies as between parents or others or both. Accordingly, it must apply with respect to all parenting orders irrespective of the relationship or absence thereof between the parties. Nor is there any reference or inclusion within that section to parental responsibility and its allocation.
Section 65Y is in the following terms:
“If a parenting order is in force a person who was a party to the proceedings in which the order was made or a person who is acting on behalf of or at the request of the party must not take or send the child concerned from Australia to a place outside of Australia save as permitted by subsection (2).”
A penalty of 3 years imprisonment is provided in the event that a breach of that requirement is established.
Subsection (2) provides exceptions to that offence being in essence the child’s removal with the consent in writing of each person in whose favour the order was made or a court order having been made authorising the removal.
In that circumstance and notwithstanding that Mr Valentine will quite correctly be the sole person with parental responsibility and thus the only person whose consent or signature is required pursuant to s.11 of the Australian Passports Act2005 to obtain a travel document, Mr Valentine would still need and require an order of the Court or the written consent of the applicants before removing the child from Australia and to do so without one or other of the above would expose him to criminal prosecution. The same would apply to the applicants although they would, as persons with no parental responsibility, require in fact more cooperation and assistance from Mr Valentine than simply his consent.
I do not accept that the legislation drafted in those terms and with such an onerous penalty imposed for a breach, authorises or delegates the exercise of Chapter III judicial authority to a party or any person other than a judicial officer.
To make the orders urged upon me by the father, being a blanket exemption from the requirements of s.65Y(1), would not, in my mind, be an appropriate exercise of judicial authority. It would be to delegate to the father, subject to his meeting the terms and conditions proposed in Exhibit ‘B’, the right to do exactly that which the Act prohibits. I cannot be satisfied that this is so.
Absent any order which restrained Mr Valentine removing the child from the Commonwealth, it would still remain a position whereby Mr Valentine would be in breach of the Act were he to seek to travel with X. That is not because the applicants have any desire to see such prosecution or because the applicants are in any way subjugating Mr Valentine’s parental authority. It operates as a consequence of law and not otherwise.
I am satisfied than an order which places X on the PACE list should be made.
There has been some debate as to the jurisdictional basis for same. I am satisfied that it is not and need not necessarily be an order pursuant to s.68B. An order under that section is an injunction for the personal protection of the child or of another person. Certainly, the Court is authorised in those circumstances to injunct and restrain a party from entering or remaining in a place of residence or a specified area or to make a more general order as might be considered necessary and appropriate for a child’s personal protection. However, I am not satisfied that the order is in fact made in this circumstance and for such protection.
The Court also has a power under s.114 to grant injunctive relief. Section 114, whilst it is contained in Part XIV of the legislation rather than Part VII, provides than in proceedings of the kind referred to in the definition of “matrimonial cause” that the Court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate including:
a)an injunction for personal protection;
b)an injunction restraining a party from entering or remaining within a property or specific premises;
c)an injunction restraining a party from entering a place of work;
d)an injunction for the protection of the marital relationship;
e)an injunction in relation to the property of a party or if an injunction relating to use of or occupation of property of the parties.
A “matrimonial cause” as defined in s.4 includes:
a)proceedings between the parties to a marriage – which cannot and does not apply in this case;
b)proceedings for a declaration of validity of marriage – which does not apply;
c)proceedings between the parties to a marriage – which does not apply;
d)proceedings between a party to a marriage and a bankruptcy trustee – which does not apply;
e)proceedings between the parties with respect to property – which does not apply;
Subsections (d) and (e) similarly provide for orders with respect to parties to a marriage. Subsection (ea) provides for proceedings between parties to a marriage or if one of the parties has died, the other party of the marriage and the legal personal representative of the deceased party. That similarly does not apply.
Accordingly, section 114 to the extent that it might be relied upon as a jurisdictional basis for an order of this kind could not in this circumstance apply as it is not an injunction granted as between parties to a marriage.
I am satisfied, however, that the Court has an inherent jurisdiction to make any order in aid of jurisdiction. Section 65Y, creating as it does, a criminal offense relating to the removal of a child from the Commonwealth, will authorise and entitle the Court to make such further practical order as would be necessary to give effect to and to forestall and prohibit a prospective breach of that order through the utility of the Australian Federal Police.
A PACE list order is not, in essence, an order. It is a request to the Australian Federal police to perform an action in aid of jurisdiction and that is the basis upon which I propose to make such order. To the extent that this may create an interference in what is perceived by Mr Valentine as his right of unrestricted freedom of movement with X from the Commonwealth of Australia to parts external thereto, there is a remedy within his hands and whilst that may appear to fly contrary to the requirement in s.60CC(3)(l) to make orders that will avoid future proceedings, it is a necessary step in this case.
I cannot be satisfied based on Mr Valentine’s own evidence and his demonstrated attitude towards compliance with orders of the Court that the potentiality of criminal prosecution would of itself be either sufficient motive or sufficient protection to avoid the child’s removal from the Commonwealth.
Indeed, the proceedings which would follow from such a removal, if it were to occur, through both criminal prosecution and potentially Hague proceedings, would be far more problematic than to create the requirement that absent consent an application to the Court would be required.
As regards, the final judiciable issue between the parties as to the wording of a mutual non-denigration order, I note that it is sought in the applicant’s case that there be a restraint which provides:
All parties are restrained from denigrating the opposing party or parties or causing any third-party to denigrate the opposing party or parties in the presence or hearing of the child.
It is advocated by Mr Valentine that the paragraph as sought by the applicants would be amended by either deleting the words “in the presence and hearing of the child” or by adding the words “or otherwise” such as to signal quite clearly that denigration at any time by any person for any purpose irrespective whether it is in the presence or hearing of the child is precluded. Again, as regards jurisdiction, I am concerned that the Court would be in some difficulty and would exceed its jurisdiction by making such an order.
The only basis upon which one could realistically found such a non-denigration injunction would be pursuant to s.68B. It provides as I have indicated the power of the Court to make an injunction for the personal protection of the child. Accordingly, in that circumstance, the non-denigration order is intended as an order which will preclude this child being emotionally or psychologically harmed through exposure to denigration of a parent or other person of significance to them.
On a literal reading of s.68B, the child’s protection could not be met by an order which precluded actions which were taken without any reference to or any involvement of that child. Accordingly, I am satisfied that to expand the ambit of such a restraint would be an exercise outside of jurisdiction.
I am also struck by the sage wisdom of my departed colleague, Slack FM, who had long opined that the making of such an order was regrettable and in his mind unnecessary as clearly if parties to proceedings were unable to restrain themselves that to make such an order was going to provide yet another mechanism by which they could attack each other and bring further proceedings before the Court for contravention.
I have some great sympathy for my departed colleague whose absence is felt on a daily basis by the Court. However, I am satisfied, particularly as each party urges, albeit with some dispute as to the nomenclature of the provision, that such a restraint should be made.
For all of those reasons, I am satisfied in short and in summary:
a)that a period of seven days and/or nights during short school holidays should be ordered that:
b)short school holidays will always occur in the second part of the holidays and with the child returning before the commencement of each school term and such that Mr Valentine will have two weekends and the first half of each holiday period;
c)for the Christmas school holidays, a period of two weeks is to be preferred and that that period will alternate between the first and second half of the holidays and so as to include Christmas Day each alternate year;
d)telephone communication will be left broad and general but with clear and specific provision for one time period on one day per week wherein there will be a clear expectation and requirement that X be available to receive calls;
e)information with respect to the child’s schooling will be obtained directly from the child’s school; and
f)the child shall be included and continue to be placed upon the airport watch list subject to the discretion of the Australian Federal police, they being the subject of request and not bound by the order.
The minute of order that has been provided to me provides a basis for the majority of orders and as far as possible, the wording proposed therein, especially when there has been an indication of agreement, will be adopted.
An order has also been sought in the proceedings by the respondent which would impose an obligation upon the applicants to require that X during any period of time that she is in their care sleep at the home of the maternal grandmother. The evidence in support of that specific order is unclear, however, it would appear to relate to concerns which the respondent suggests he holds with respect to the maternal aunt, and in particular an express desire that X sleep in an environment with which she is familiar.
The evidence in the applicant’s case would suggest that X has primarily spent any time, including prior to her mother’s death, sleeping at the home of the maternal grandmother. The maternal grandmother’s home and its retention by the applicants or otherwise is the subject of dispute in Family Provision Act proceedings. Accordingly, there is some possibility that the home may, in the immediate future, be sold or dealt with in some fashion. That would not in my mind promote security or the avoidance of future proceedings in the event that this was to occur.
More fundamentally, there is no basis upon which it is urged or suggested that the child’s best interests would not or could not be met in the event that she would sleep at any other premises. It would, in my mind, appear somewhat artificial to impose such a requirement and obligation particularly upon persons whom otherwise it is proposed in the respondent’s case would assume the care of the child for five days and nights during each short school holiday period and for 10 days at Christmas.
One can infer, and I do so, that a person seized of such responsibility need not be the subject of specific guidance and direction as to how they will spend time with the child or how or where the child will be accommodated whilst in their care. It is also germane to note the provisions of the legislation which whilst the applicant’s do not seek and will not have in their favour any order for parental responsibility which would give rise to and create an obligation for them to be involved or at least consulted with major issues decision making.
The effect of these orders would be to invest day-to-day decision-making authority pursuant to s.65DA in them. Accordingly, I am satisfied that there is no evidence to suggest that there is an inability on the part of the applicants to make sensible and appropriate decisions for this child’s accommodation. It would otherwise create a degree of artificiality in arrangements which would not be conducive to the child’s best interests.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 11 May 2012
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