LATIF & LATIF

[2019] FCCA 1806

FEDERAL CIRCUIT COURT OF AUSTRALIA

LATIF & LATIF [2019] FCCA 1806

Catchwords:
FAMILY LAW – Parenting – parental responsibility – airport watch list order – dispute as to schooling – whether sole parental responsibility should be granted with respect of education matters only – presumption of equal shared parental responsibility not rebutted – airport watch list order made – other orders made by consent.

Legislation:

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

Applicant: MR LATIF

Respondent: MS LATIF

File Number: MLC 10255 of 2017

Judgment of: Judge Blake

Hearing date: 29 May 2019

Date of Last Submission: 5 June 2019

Delivered at: Melbourne

Delivered on: 28 June 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: None

Counsel for the Respondent: Mr Whitchurch

Solicitors for the Respondent: Danielle Webb Lawyers

ORDERS

1. The parents have equal shared parental responsibility for [X] born … 2015 (‘the child’).

2. The child live with the mother.

3. The child spend time and communicate with the father as follows:

   (a)Each alternate weekend from 5:45pm Friday until 5pm Sunday;

   (b)On Father’s Day from 5pm the day before Father’s Day until 5pm on Father’s Day;

   (c)On the child’s birthday:

   (i)if a school or kindergarten day, from the conclusion of school or kindergarten or 3:30pm (as the case may be) until 6pm;

   (ii)if it is not a school or kindergarten day and not a day the father is spending time with the child pursuant to order 3(a) herein, then from 2pm until 8:30pm;

   (d)On the father’s birthday, from 5:30pm until 8:30pm if the child is attending school or kindergarten on that day, or from 10am until 5:30pm if she is not attending school or kindergarten;

   (e)On Eid – Ftr from 5:30pm to 8:30pm if the child is attending kindergarten or school on that day, or from 10am until 5:30pm if she is not if she is not attending school or kindergarten;

   (f)On Eid – Adha from 5:30pm to 8:30pm if the child is attending school or kindergarten on that day, or from 10am until 5:30pm if she is not if she is not attending school or kindergarten;

   (g)On the 27^th day of Ramadan from 6pm until 8:30pm;

   (h)During the Christmas period:

   (i)from 3pm Christmas Eve to 3pm Christmas Day in 2019 and each alternate year thereafter;

   (ii)from 3pm Christmas Day to 3pm Boxing Day in 2020 and each alternate year thereafter;

   (i)during the New Year period, from 3pm New Year’s Eve to 3pm New Year’s Day in 2019-2020 and each alternate year thereafter;

   (j)during the Easter period:

   (i)from the conclusion of school or kindergarten or 3:30pm (as the case may be) on the day before Easter Friday to 3pm on Easter Friday in 2020 and each alternate year thereafter; and

   (ii)from 3pm on Easter Sunday to 3pm on Easter Monday in 2021 and each alternative year thereafter;

   (k)on Melbourne Cup Day from 10am to 4pm;

   (l)such further or other times as agreed in writing between the parties.

4. The father’s time with the child is suspended:

   (a)On the child’s birthday if the child is in the father’s care pursuant to these orders (save for paragraph 3(c)):

   (i)if a school or kindergarten day, from the conclusion of school or kindergarten or 3:30pm (as the case may be) until 6pm;

   (ii)if it is not a school or kindergarten day, then from 2pm until 8:30pm;

   (b)on Mother’s Day from 5pm the day before Mother’s Day until 5pm on Mother’s Day;

   (c)on the mother’s birthday, from 5:30pm until 8:30pm if the child is attending school or kindergarten on that day or from 10am until 5:30pm if the child is not attending school or kindergarten on that day;

   (d)during the Christmas period:

   (i)from 3pm Christmas Day to 3pm Boxing Day in 2019 and each alternate year thereafter;

   (ii)from 3pm Christmas Eve to 3pm Christmas Day in 2020 and each alternate year thereafter;

   (e)during the New Year period, from 3pm New Year’s Eve to 3pm New Year’s Day in 2020-21 and each alternate year thereafter;

   (f)during the Easter period:

   (i)from 3pm on Easter Sunday to 3pm on Easter Monday in 2020 and each alternate year thereafter; and

   (ii)from the conclusion of school or kindergarten or 3:30pm (as the case may be) on the day before Easter Friday to 3pm on Easter Friday in 2021 and each alternate year thereafter

   (g)On the eve before Eid - Ftr and Eid - Adha being Chaand Raat from 5pm until 10am on the first day of Eid.

   (h)such further and other times as agreed between the parties in writing.

5. The father may communicate with the child by FaceTime or any other Internet based face-to-face communication system any time at reasonable hours as agreed between the parties, or failing agreement, between the hours of 6:30pm and 7:30pm each Monday and Wednesday.

6. Changeovers are to occur at any location as agreed between the parents, and failing agreement, as follows:

   (a)in respect of the father’s time commencing at 5:45pm on Friday as contemplated by order 3(a), the mother shall drop the child off at the father’s workplace (currently located in Street A, Suburb B);

   (b)in respect of the return of the child to the mother at 5pm on Sunday as contemplated by order 3(a), the father shall drop the child off at the mother’s residence;

   (c)at all other times, the mother drop the child off at the father’s residence at the commencement of his time, and the father drop the child off at the mother’s residence at the conclusion of his time.

7. From the commencement of the school year in 2020:

   (a)the child attend school at School C in Suburb D, with the father to pay the school fees;

   (b)in the event that the father refuses or is unable to pay the school fees specified in subparagraph (a) above, the child attend a local kindergarten or state primary school agreed by the parents or failing agreement, the kindergarten or school closest to the mother’s residence.

8. Until further order, both parties, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the child: 

   [X] born: … 2015

   from the Commonwealth of Australia.  This Order ceases to have effect on 14 May 2027.

9. The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders.

10. The Court requests that the Australian Federal Police place the name of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.  This order ceases to have effect on 14 May 2027.

11. The father and mother keep each other informed of the names and contact details for all of the child’s medical professionals including psychologists and provide the details of any medical attendances whilst the child is in the care of the other parent to enable the other parent to continue with any treatment recommended by the child’s health professionals while in the care of that parent.

12. The parents communicate about parenting matters in writing save for an emergency, or alternatively, communicate with each other in relation to parenting matters via a co-parenting app such as MyMob.

13. Should the child be involved in any medical or other emergency, or be hospitalised, the parent with care of the child shall at that time notify the other parent as soon as practicable and provide them with all relevant information relating to the condition and treatment of the child, including the nature of the medical emergency and the name and address of the facility where the child is receiving treatment.

14. The parents be at liberty to receive information from the child’s doctors, psychologists or other medical professionals as may be requested from time to time concerning any matters about the child’s welfare, with this order serving as authority to the medical professionals in question to supply them with same.

15. The parents be at liberty to attend childcare, school and extracurricular functions and events of the child and all other similar activities that parents are usually entitled to attend, and to receive copies of reports, photographs, certificates and awards, with this order serving as authority to the school or activity provider to supply them with same.

16. Each parent shall be entitled to be listed as an emergency contact with the child’s childcare provider, school, treating medical practitioners or extracurricular activity providers and they shall each do everything necessary to ensure that the other parent is so listed. 

17. The parents keep each other apprised of their contact details, including their address, telephone number and email address, and advise the other parent of any changes thereto immediately.

18. The parents be restrained by injunction from doing the following:

    (a)criticising or denigrating the other parent, their family, friends or acquaintances in the presence or hearing of the child;

    (b)discussing these or other court proceedings in the presence or hearing of the child;

    (c)discussing the future parenting arrangements in the presence or hearing of the child, including during Face Time or other internet based communication time in accordance with these orders;

    (d)acting in a provocative or aggressive manner in the presence or hearing of the child;

    or allowing any other person to do so.

19. Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATION:

Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

IT IS NOTED that publication of this judgment under the pseudonym Latif & Latif is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10255 of 2017

MR LATIF

Applicant

And

MS LATIF

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 4 October 2017, the father filed an application in relation to parenting arrangements for the child, [X], born … 2015 (the ‘child’). On 29 May 2019, the father filed an Amended Initiating Application with the Court. I refer to this latter document as the ‘Application’.

2. The position of the mother is set out in her Amended Response (‘Response’) filed on 21 May 2019.

3. The Application and Response disclosed a dispute between the parties in relation to matters including parental responsibility, the amount of time the child should spend with the father, changeover arrangements, special occasion time, education arrangements and other matters.

4. The matter was listed for final hearing before me on 29 May 2019. At the commencement of the hearing, the matter was stood down to enable the parties to see if they could reach agreement in relation to any of the matters that were in dispute before the Court.

5. When the matter was called back on, the parties advised the Court that they had reached agreement in relation to a range of matters and that there were only three matters of substance in dispute between the parties.  The matters that are in dispute are as follows:

   a)the mother’s claim for sole parental responsibility in respect of education;

   b)the arrangements for changeover, and in particular, changeover arrangements at the commencement of weekend time to be spent with the father;

   c)whether the child may travel to Country E with the mother. This issue manifested itself in two ways. The father wants both the child and mother placed on an airport watch list. The mother seeks orders that the father sign documents to enable the child to obtain a passport. She also sought orders that permit her to travel with the child to Country E.

The Claims and the Evidence

The Claim for sole parental responsibility for education

1. The mother sought equal shared parental responsibility for the child with one exception. The exception was that the mother sought sole parental responsibility for education. This was opposed by the father who sought equal shared parental responsibility.

2. During the hearing, it emerged that this issue really came down to a dispute about which kindergarten and school the child should attend from 2020. Counsel for the mother agreed with the proposition.   

3. In his affidavit, the father deposed to the benefits of having the child attend an Islamic school.  The issue was not contested by the mother and I accept the evidence of the father about the benefits of that school.

4. The matter in issue, then, is which parent would pay the child’s school fees. The father’s position is that the child must attend the School C private Islamic school in Suburb D, where the fee is $1,600 per year and that the mother should pay the school fee. The father’s position is that because he pays child support of $530 per month, the mother should pay the school fee.

5. The mother is unemployed and presently studying at University.  She states that she is not able to afford the fee to send the child to a private school.  She is happy to accede to the father’s wishes that the child attend a private Islamic school on the basis that he pays the fee given her poor financial position.

6. Under oath, the father deposed that he earned an income of around $70,000 per annum.  He confirmed his payment of child support to the mother being in the vicinity of $530 per month.  He also has relatives in Country E whom he supports financially, and he stated that he sends them an amount of about $500 per month. I accept all of this evidence.

7. The mother’s evidence is that she is currently studying. I accept that she has been admitted to study at University which she had to defer because she cannot pay the upfront fee. The mother’s income consists of government benefits she receives and child support payments from the father. The mother deposed under cross examination that her total income is around $20,000 a year.  I accept this evidence.

8. During cross examination, the father attempted to establish that the mother had a source of funds that would enable her to pay the school fees.  He put various questions to her relating to her spending and also as to whether she had an additional source of income support from family.  These attempts failed to establish any additional capacity for the mother to pay the fee.  I find that the mother has no other source of income other than that which I have already found above. Having regard to all of the evidence, I find that the mother is unable to pay the fee for the Islamic school.

9. The Family Law Act 1975 (‘Act’) provides in section 61C that each parent of a child who is not 18 has parental responsibility for that child. Further, section 61DA(1) provides that 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 responsibility for the child. Subsections (2) to (4) of section 61DA of the Act then set out the circumstances in which the presumption of equal shared parental responsibility will not apply.

10. There is nothing in the evidence that I have seen, or in the submissions which were made, that convinces me that there is any basis for making an order for sole parental responsibility in respect of education in favour of the mother. The case, as it was advanced, really boiled down to a dispute about choice of school for the child and who will pay the associated school fee. Apart from that issue, no other evidence was put to me in relation to broader educational issues that might arise in respect of the child. Counsel for the mother when questioned conceded that this was a dispute about choice of school rather than a dispute about parental responsibility for broader education matters.

11. In light of the above, I decline to make any order granting sole parental responsibility for education to the mother. The presumption of equal shared parental responsibility has not, in my view, been displaced by the evidence in this matter.

12. The issue therefore remains with respect to where the child will attend kindergarten and/or school. There is no dispute in the evidence before me as to whether the child ought to attend an Islamic school. The father clearly wants this to occur and the mother is prepared to accommodate that. The real issue is who will pay for it.

13. I have already made a finding that the mother is unable to pay the fee.  In that circumstance, I will make an order that the child attend the School C Islamic school as nominated by the father but only on the condition that he pay the associated school fees. If the father is unwilling or unable to pay the school fee, I will make an order that the child be enrolled in a government funded kindergarten and/or local state school.

The claim in relation to Changeover

1. Under the present arrangements, the mother drops the child at the father’s residence at 7pm on alternate Fridays. The father returns the child to the mother at her residence on Sunday afternoon on the same weekend. The father wants this arrangement to continue.

2. The mother says that this arrangement was entered into when the father lived in Suburb F. He has since moved to Suburb G, a fact acknowledged by both parties, which has added over one hour of travel time in peak hour on a Friday evening.  As a result, she claims, and I accept, that she has missed classes at the course she is currently enrolled in. The mother proposed several options to deal with this dispute, including that the father collect the child from child care on Friday afternoon, or that the father’s time commence on Saturday morning. None of these were acceptable to the father.

3. The father says that he has recently obtained employment in Suburb B. He said that as a result of this role, which is a promotion, he cannot leave work early to pick up the child from child care on a Friday evening. I accept the father’s explanation in relation to this.

4. During the hearing, the father confirmed that he will always be at home in Suburb G by 7pm on Friday. I asked the father in light of the fact that he was certain about the time he would be home, what time he was required to leave Suburb B at the latest to achieve that. He said he would leave the office by 5:30pm or 5:40pm. I then asked the father whether there was any issue with the mother dropping the child at his office at around 5:40pm. The father expressed reluctance about this saying that the workplace would not tolerate a child in it. I put it to the father that what I was suggesting was not that the child be in the office but that changeover occur outside his office at the time he was leaving.  The father accepted this might occur, but indicated it did not suit a situation where he may be able to leave the office earlier.

5. Counsel for the mother having heard this exchange indicated that the mother would be prepared to drop the child at the workplace between 5:30pm and 5:40pm.

6. I am unable to discern any reason why changeover cannot occur outside the father’s office at 5:40pm, given his confirmation that he is always home by 7pm on a Friday. Both parties clearly want changeover to occur on Friday. It makes little sense to require the mother to drive the additional hour and sacrifice her studies – her advancement will ultimately benefit the child. The father was not able to give a cogent reason as to why changeover could not occur outside his office, other than it might frustrate his ability to leave early if he could. I appreciate that this might be an issue for the father, however there is no perfect solution in this case. Changeover outside the father’s office on a Friday at a specified time appears the course with the least amount of difficulty attached to it for the child and for the parents.

1. I therefore will make an order that unless the parties agree otherwise, changeover is to occur on a Friday evening at 5.45pm outside the father’s work premises.

The Claim in relation to Travel

1. The father seeks an order that the mother and the child be placed on an airport watch list. His basis for seeking the order is a concern that the mother may move to Country E permanently. 

2. There is no evidence that the mother has threatened to move to Country E.  The closest the evidence gets is that during the relationship, the father says the mother indicated a preference to live in Country E. The father also says that the mother has few links to Melbourne, does not own property here, that her family are not in Australia and that she has few friends in Australia. In short, he says there is nothing holding her here, and she will have greater social and financial support in Country E, and that is the incentive for her to relocate.

3. The mother resists the making of the airport watchlist order. She seeks orders that the father sign documents to enable the child to obtain a passport, and that the child be permitted to travel with the mother to Country E at least once per year for no longer than four weeks. In her affidavit, the mother says that she has applied for Australian citizenship.  During cross examination, it also emerged that the mother has not returned to Country E to see her family since 2016, whereas it is conceded that the father has travelled to Country E since then.

4. The father’s evidence about the mother was to some extent corroborated by the mother. She acknowledged that she would be supported financially by her family in Country E. The mother also conceded when I asked during cross examination that she does not have any friends or family in Melbourne.

5. I find that the mother has not made a threat to take the child to Country E permanently. I also find, however, that the mother’s lack of family support in Australia, a social network in Australia, her income level, and her lack of property ownership means that she has incentive to relocate to Country E with the child, where she could obtain assistance from her family.

6. The issue of international travel was touched on in the section 11F memorandum prepared by a family consultant and conducted on

   
   

   16 January 2018.  In relation to travel, which was identified as an issue between the parties, the Family Consultant noted as follows:

   ‘It is noted that as of 1 March 2017 Country E has become a signatory to the Hague Convention although not a member of the HCCH.  Neither parent is comfortable about allowing the other parent to travel with [child] to Country E nor have the parents resolved their dispute about the status of [the child’s] passport and identity card’.

7. Under the heading ‘Future Directions’, the Family Consultant made the following recommendation in relation to travel:

   ‘[The child’s] name is to be placed on the Airport Watch List until she is aged 12 years and she will be prohibited from international travel with either parent’.

8. The father also submitted that Country E was not a ‘Hague Convention country’ and that this outcome means I should be minded to make the watchlist order. Both parties made post hearing submissions on this issue. The mother’s submission provided that Country E is a ‘contracting state to the convention’. The mother’s submission however, also contained the following:

   ‘The accession needs to be accepted by Australia with the deposit of an instrument of declaration accepting the accession. The Attorney General’s Department list of countries is not up-to-date and Country E is not mentioned in the list of countries of either accepted or being a signatory and not yet accepted by Australia.  The Central Authority has confirmed with our office that whilst Country E has acceded to the convention Australia has not yet accepted that with a declaration. Once that happens the convention will be in force between Australia and Country E’.

9. The import of the submission above is that the Hague Convention is not in force between Australia and Country E.

10. Having regard to all of the matters above, including the circumstances of the mother, the recommendation of the Family Consultant, and the Hague Convention not being in force between Australia and Country E, I will make an order placing the child’s name on the Airport Watch List, and prohibiting the child from international travel until she reaches 12 years of age. I will not make any orders requiring the father to sign passport documentation for the child. 

11. I am conscious of the mother’s need to reconnect with her family and to have emotional support. In my view she can obtain that and travel to Country E independently. She just cannot take the child with her.

The Remaining Orders

1. As I mentioned at the outset, the parties were otherwise able to agree on the parenting orders that were to apply in relation to the child. Those orders were set out in the father’s Application and the mother’s Response. I have considered the orders proposed by the parties and the orders necessary to give effect to these reasons in light of the relevant provisions set out in Part VII of Act. In particular, I have had regard to section 61DA, section 65DAA(1), section 60CA and section 60 CC of the Act.

2. I am satisfied that the orders proposed as consent orders by the parties, and the orders I have made to reflect these reasons, are orders that are in the best interests of the child. 

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Blake

Date: 28 June 2019