MARANO & OGDEN

[2013] FCCA 609

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARANO & OGDEN [2013] FCCA 609

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – travel out of Australia – where Orders in force allow for child to be taken out of Australia for a holiday – best interests of the child – equal shared parental responsibility – passport – high level of long standing conflict between parties – appointment of Independent Children’s Lawyer – where orders sought to be enforced were specifically argued at a final hearing – final parenting orders should not be lightly varied or reversed.

EVIDENCE – Evidence that is not relevant is not admissible – evidence of events that predate earlier final hearing.

PRACTICE AND PROCEDURE – Whether final hearing can be contained within four days – consideration whether application should be transferred to Family Court of Australia.

Legislation:
Evidence Act 1995 (Cth), s.56
Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65H, 65Y, 68L

Federal Circuit Court of Australia Act 1999 (Cth) s.39

Cases cited:
Marano & Ogden [2007] FMCAfam 361
Marano & Ogden [2011] FMCAfam 809
Ogden & Marano [2010] FMCAfam 219
Re K (1994) 17 Fam LR 537; FLC 92-461
Rice v Asplund (1979) FLC 90-725

Applicant: MR MARANO

Respondent: MS OGDEN

File Number: SYC 4367 of 2009

Judgment of: Judge Scarlett

Hearing date: 21 June 2013

Date of Last Submission: 21 June 2013

Delivered at: Sydney

Delivered on: 21 June 2013

REPRESENTATION

Counsel for the Applicant: Mr Macpherson

Solicitors for the Applicant: Staunton & Thompson Lawyers

Counsel for the Respondent: Mr Batey

Solicitors for the Respondent: Broun Abrahams Burreket

ORDERS

UNTIL FURTHER ORDER:

1. In accordance with Orders 17 and 18 made on 9 August 2011 the Respondent Mother is to surrender the Australian Passport of the child X born (omitted) 2004 to the Sydney Registry of the Court for the purpose of the child’s travel outside Australia between 30 June 2013 and 27 July 2013 and the Applicant Father is permitted to uplift the child’s passport forthwith.

2. The Applicant Father is permitted to take the child X born (omitted) 2004 from Australia to a place outside Australia for the purpose of Orders 17 and 18 made on 9 August 2011 between 30 June 2013 and 27 July 2013.

3. The Respondent Mother must take the child X to school on 27 June 2013 and:

   (a)Ensure that the child has a bag packed with suitable clothing and other items necessary for a holiday out of Australia; and

   (b)Must not be present at the child’s school when the father collects the child.

4. The Father must return the child X to Australia by 27 July 2013.

5. The Father must return the child’s passport to the Sydney Registry of the Court within two (2) working days of the child’s return to Australia.

6. Whilst the child X is out of Australia the Father must permit the child to telephone the mother on at least one occasion every three (3) days and do all things necessary to facilitate such telephone calls.

7. In accordance with the provisions of s.68L of the Family Law Act the interests of the child X born (omitted) 2004 are to be independently represented by a lawyer and Legal Aid NSW is requested to arrange such representation.

8. Within fourteen (14) days of the date of this Order the parties must forward to Legal Aid NSW for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits, reports, Family Consultant Memoranda to Court and all other relevant documents.

9. The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas for which the fee is to be waived.

10. The Application is adjourned to Friday 9 August 2011 for mention before Judge Sexton at 9:30 am.

THE COURT NOTES that the parties have been advised that if the final hearing of the Application cannot be contained within four (4) hearing days then the proceedings may be transferred to the Family Court of Australia under s.39 of the Federal Circuit Court of Australia Act 1999.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 4367 of 2009

MR MARANO

Applicant

And

MS OGDEN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father to enforce Orders made on 9^th August 2011 providing that he should be able to take his daughter X on a holiday to the United States of America at the end of this month.

2. The Mother opposes this Application. She has filed a Response in which she seeks:

   a)The appointment of an Independent Children’s Lawyer under s.68L of the Family Law Act 1975 (Cth);

   b)Varying the parenting Orders so that the child would only spend time with her father from 10:00am to 3:00pm every second Sunday; and

   c)That Order 17 made on 9^th August 2011, which provided for the Father to take the child on holiday, should be discharged.

3. The Mother also seeks a number of final orders which would have the effect of making extensive changes to the entire parenting regime, but those are matters for another day.   

Background

1. The parties were married in (omitted) 1998 and separated in (omitted) 2003. They were divorced the following year.

2. There is one child of the marriage, who was born after the parties separated. X was born on (omitted) 2004.

3. The Father has married and he and his wife have three children of their own, little boys aged three and a half, two and almost one year of age.[1] The Mother has formed a new relationship.

   [1] Affidavit of Mr Marano 16.5.2013 at paragraph [5]

4. The parties have been engaged in litigation at various times since 2004, when they entered into consent orders in the Family Court. There were further consent orders made on 5^th April 2005.

5. The Father again commenced proceedings in November 2006. However, it appears that he sought to withdraw that application in January 2007. On 2^nd February 2007, Altobelli FM[2] heard submissions and made some orders by consent. He also made another order and provided ex tempore reasons for that order. His Honour considered an application for costs by the Mother, and on 7^th June 2007 dismissed the application (Marano & Ogden[3]).

   [2] As his Honour then was

   [3] [2007] FMCAfam 361

6. Again, the Father commenced proceedings on 5^th November 2009, seeking to vary the final Consent Orders of 5^th April 2005, as subsequently varied by the Orders made by Altobelli FM on 2^nd February 2007. The Mother sought a dismissal of this Application under the principles in Rice v Asplund[4]. This Application by the Mother was unsuccessful (Ogden & Marano[5]) and the substantive Application proceeded to final hearing. 

   [4] (1979) FLC 90-725

   [5] [2010] FMCAfam 219

7. On 9^th August 2011 Baumann FM[6] handed down his decision after a final hearing (Marano & Ogden[7]). His Honour made Orders relating to the ability of the parties to take the child out of Australia for holidays, both generally and in particular. Orders (16) and (17) dealt with particular proposals by the parties and are of relevance to the matter currently before the Court. His Honour held:

   (16)That the Mother be permitted to travel overseas to the United Kingdom and Europe with the child for the whole of the July 2012 school holiday period in[8] the first two weeks of Term Three in 2012 and on the basis that the Father have the care of the child for the whole of the first school holiday period at the end of Term One in 2012 and on the basis that the Father have the care of the child for the whole of the first school holiday period at the end of Term One in 2012 (sic)[9].

   (17)That the Father be permitted to travel overseas to the United Kingdom, Europe or North America with the child for the whole of the July 2013 school holiday period in[10] the first two weeks of Term Three in 2013 and on the basis that the Mother have the care of the child for the whole of the first school holiday period at the end of Term One in 2013.

   [6] As his Honour then was

   [7] [2011] FMCAfam 809

   [8] It was agreed by counsel that this is a typographical error and the word should be “and”.

   [9] The repetition appears to be a clerical error

   [10] Again, this appears to be a typographical error and the word should be “and”

8. The controversy between the parties has arisen because the Mother now claims that the child is vehemently opposed to going away with her father and his new family. The child is heavily involved in dancing and the Mother complains that the Father does not support this activity, which the child enjoys. It is the Mother’s case that the child complains that the time that she spends with her father is too long and she finds the activities in the Father’s household “boring”.     

The Current Proceedings

1. The Father’s Application was returnable on 7^th June 2013. Judge Baumann directed that the parties should attend a Child Inclusive Chid Dispute Conference, which took place on 12^th June. The Family Consultant Memorandum to Court, which is more than usually comprehensive, is before the Court. His Honour adjourned the proceedings to today for further mention. The matter was transferred into the docket of Judge Sexton, who was not available today for family reasons. However, the further hearing of the Application will take place before her Honour, unless it is transferred to the Family Court, which is a possibility.

Evidence and Submissions

1. The Father relied on the following:

   a)his Application filed on 16^th May 2013;

   b)his affidavit sworn on 16^th May 2013;

   c)the affidavit of his wife Ms K sworn 15^th May 2013;

   d)the affidavit of his sister Ms A.

2. The Mother has filed the following:

   a)her Response filed on 4^th June 2013;

   b)her affidavit sworn on 3^rd June 2013;

   c)the affidavit of Ms S sworn 4^th June 2013;

   d)the affidavit of Ms E sworn 4^th June 2013;

   e)the affidavit of Ms B sworn 4^th June 2013;

   f)the affidavit of Ms C sworn 4^th June 2013;

   g)the affidavit of Ms O sworn 4^th June 2013; and

   h)the affidavit of Mr N sworn 4^th June 2013.

3. The Father also referred the Court to the Court Expert Report of Dr R dated 5^th July 2010, used in the previous hearing, and the Family Consultant Memorandum of 12^th June 2013.

4. Counsel for the Mother sought leave to file in Court an updating affidavit by the Mother sworn on the morning of the hearing. Leave was not opposed.

5. If the deponents to all these affidavits are required to give oral evidence at a final hearing, it raises a doubt that the hearing could be contained within four hearing days. In such cases, the protocol between this Court and the Family Court would indicate that a hearing likely to take more than four days should be transferred to the Family Court. Counsel for the Mother told the Court that a transfer would not be opposed, but counsel for the Father submitted that it was too early to make a decision of that nature.

6. I have decided not to transfer the matter at this stage and the issue can be revisited on another occasion.

7. The Father in his affidavit states that when the child spends time with him according to the Orders she appears to be happy and enjoys spending time with him and his other family members. He deposed that as recently as 5^th April 2013 the child was firm in her wishes to travel to the United States with him and the others. He complains that the Mother has constantly filled the child’s time with activities, many of which impinge upon his time with the child. He believes that the child is afraid of angering her mother by not attending the dancing activities that her mother has arranged for her.

8. The Father deposed that the child told him on 5^th April 2013 that “Mum doesn’t want me to stay at your house” and “Mum said that she has to do that (take her into dance school) …I’m not allowed to go in with you”.[11]

   [11] Affidavit of Mr Marano at 16.5.2013 at [34]

9. The Mother deposed in her affidavit that the child has been exhibiting signs of distress because her father refuses to take her to her dance classes when she spent time with him. She deposed that in February she had received an email from the dance school “advising that if (the child) was not brought to classes she would not be allowed to participate in any of her troupes during 2013.”[12]

   [12] Affidavit of Ms Ogden 3.6.2013 at paragraph [71]

10. It is the Mother’s evidence that the child has been crying hysterically at times when she due to spend time with her father, saying that she did not want to go, although she has tried to calm her down and allay her fears. She states that she has encouraged the child to go with her father but the child has constantly refused.

11. The Family Consultant noted in her Memorandum to the Court that the Father’s contact with the child virtually ceased from early February, due to disputes about her attending dancing classes on Friday evenings and on Saturdays and her expressed desire to have her mother, rather than her father, take her to dancing.

12. The Family Consultant interviewed both parents as well as the child.

13. The Family Consultant reported the Mother’s view as:

    The mother is suggesting that the events of February 2013 were just “the straw that broke the camel’s back” and that the best option from now on would be that (the child) see her father every second Sunday between 10am and 3pm and then only if she wants to. She says this is what (the child) has told her she would like…The mother’s expressed view is that it is very important for girls to have a good relationship with their fathers and she says she believes (the child) would likely want to go if she didn’t think she had to.[13]

    [13] Family Consultant Memorandum to Court 12 June 2013 page 2

14. The Family Consultant reported the Father’s views in this way:

    The father optimistically expressed the belief that, if (the child) were to go on the holiday with him and his family, it would be a “circuit breaker” and things would “revert back” to how they used to be. He also tearfully said that, if he thought it would remove the stress and be better for (the child), he would “walk away” for the time being, but he thinks (the child) experiences “balance” to her life at his place, a “positive refuge” from the control wielded over all aspects of her life by her mother.[14]

    [14] Ibid

15. I might comment at this point that counsel for the Father, in his submission, referred to the Father’s belief that if the child were to go on the holiday with him, this may well put right the difficulties in the relationship. I expressed the view that the Father should not pin all his hopes on that happening.

16. The Family Consultant reported the child as loving her school and loving her dancing and said:

    …she does not want to go on the holiday because it would be “too long away from Mummy” and she would be out of “troupe” (dancing). She said she would be “stressed” about letting “the team” down if she were not able to perform at the eisteddfod. When asked how she would feel if she did not go on the holiday but the father and the rest of the family did go, (the child) was quite taken aback and said “that’s a tough question”. She acknowledged that if she went on the holiday she would “go on lots of things” (she was referring to rides at Disneyland) and “miss out on quite a lot” if she were not to go. She also said that she had, as her father had claimed, previously been “excited” about going and had been very involved in planning the trip and the rides she would go on etc. Now, however, she said she “just feel[s] like staying with Mum”.[15]

    [15] Family Consultant Memorandum 12 June 2013 page 2

17. The Family Consultant set out a rather pessimistic picture of the issues impeding resolution:

    (The child) has been in the middle of the conflict between her parents all of her life and there seems no light on the horizon. Both parents became tearful when talking about the pressures upon their daughter but they seem unable to ameliorate these for her. She, on the other hand, was dry eyed and it is likely that she has developed necessary but unhealthy ways of managing the fact that her life is split into two clearly demarked zones, namely, by cutting herself off from her real feelings and trying to achieve the impossible – making both parents happy. Things have perhaps reached a point at which she can not manage the split as she used to.

    The father seems to have an understanding that it would be better for (the child) if there could be some rapprochement between her parents and seems at a place where he could manage that emotionally. The mother, however, while undoubtedly wanting the best for her daughter, does not seem able to prioritise (the child’s) relationship with her father over other elements of her daughter’s life.

    Under normal circumstances there would not appear to be any reason why (the child) could not and should not go on the holiday. She has had a break in spending stretches of time with her father but their relationship is solid and could transcend the break…

    The mother says she is concerned that, if (the child) were forced to go on the holiday, she may become so distressed in the lead up and, even more worryingly, while away that something dangerous could happen such as her running away. There does not seem to be any evidence that she is a child who could behave in such a way and she certainly did not appear to lack common sense or be uncontrolled.

    It is difficult to know how much (the child) would seriously miss her mother and/or how much she cares about the prospect of missing “troupe” etc because the adults are so invested in their own perspectives that hers as a separate individual tend to get lost. In any case it would not be usual in a family that the views of a nine year old would have greater weight than those of a parent, so (the child’s) expressed views should not carry significant sway.[16]  

    [16] Family Consultant Memorandum to Court 12.6.2013 at page 3

18. Counsel for the Father submitted that this issue was dealt with by a judgment of this Court on 9^th August 2011. The Court made a specific order about this very trip. The Mother did not appeal against the decision.

19. He submitted that the Mother is attempting to thwart the child’s relationship with her father. She has treated the orders of the Court as optional, by arranging activities for the child in the Father’s time without his consent, in defiance of Order (11), and by taking the child overseas in 2012 for seven weeks, in defiance of Order (16). The child did not seem to suffer from missing her dancing whilst she was away, although she did not see her father for that time.

20. It was submitted that the child’s expressed view should not have significant sway. The evidence leads to the inference that there has been pressure placed on the child by her mother to express the views that she has.

21. Counsel for the Father referred the Court to the Court Expert Report by Dr R prepared for the earlier proceedings. In particular, he referred to Recommendations 11 and 12 in that Report, which said:

    11.Because of the high conflict nature between the parents, for the same reasons that a joint parenting arrangement is not likely to be successful, having joint times for sport and training is also not likely to work well for the child and therefore, except for specially important occasions it is much better for the child that both parents not attend those regular events. I recommend that a mediation process be utilised to determine which (of) the major events are where both parents could perhaps attend.

    12.In a situation of high conflict such that exists here between these parents it is possible (although I believe unlikely with this mother) that spurious allegations could be raised that may threaten to alienate the child from the father. I believe this would be a serious development which could lead to the need for a change of residence.[17]

    [17] Medico-Legal Report by Dr R 5 July 2010 page 17

1. Counsel for the Mother submitted that the orders of the Court resulted from a hearing when the child was six and a half years old. Now she is nine and a half. Three years, he submitted, is a long while for a child.

2. By and large, the Court Orders have been adhered to. He replied to the claim by counsel for the Father that the Mother had taken the child away overseas in 2012 for seven weeks in defiance of the orders, saying that it was only five weeks.

3. The child herself is a “delightful child” who enjoys her dancing, he said. She is a well-developed, well adjusted responsible child whose views should be given weight.

4. It was submitted that the Court should take into account that the Family Consultant spent only twenty-five minutes talking to the child but spent three quarters of an hour to an hour with each of the parents. This was not a basis for the Family Consultant to recommend that the child’s expressed wishes should not be given much weight.

The Law to be Applied

1. This is a parenting case. The Father complains that the Mother is attempting to thwart the orders made by this Court on 9^th August 2011 and sabotage the Father’s relationship with his daughter. The Mother claims that the relationship between the Father and the child has so deteriorated that the parenting arrangements need to be revised.

2. It is still the case that in deciding whether to make a particular parenting order, the Court is required by s.60CA of the Family Law Act to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s. 60CC of the Act.

3. I have considered all of those matters, so far as they are relevant.

4. The Court is required by s.61DA of the Act when making a parenting order to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, the presumption does not apply of there are reasonable grounds to believe that a parent or other person has engaged in abuse or family violence (s.61DA(2)).

5. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child (s.61DA(4)).

6. The presumption applies in interim proceedings unless the Court considers it inappropriate for the presumption to be applied (s.61DA(3)).

7. I have considered those matters, also.

Conclusions

1. This is not a matter where it is appropriate to disturb the Order made by Baumann FM that the parties should have equal shared parental responsibility for the child.

2. There are no issues of family violence, which has a bearing on matters to be considered in s.61DA, s.60CC(2)(b) and s.60CC(3)(j) and (k). The parents in this case are not that sort of people.

3. It is and it remains the case that this child’s best interests are the paramount consideration. This consideration must override the wishes of each parent if those wishes do not promote what the Court considers to be the best interests of the child.

4. It is a primary consideration that the Court must have regard to the benefit to the child in having a meaningful relationship with both of her parents. There is, in my view, a cause for concern that the Mother’s views about the child and her activities are not assisting this child to maintain a meaningful relationship with her father.

5. The Mother’s affidavit of 3^rd June 2013 contains material that causes some concern. At paragraphs [15] to [36] the Mother sets out a number of examples of the child missing out on various birthday parties, dancing activities and other activities as a result of the Father’s refusal to allow the child to attend.

6. What is perplexing is that these paragraphs relate to events said to have occurred from early in 2008 through to 27^th May 2010, all of which predate the final hearing in this Court which took place on 31^st August 2010. One would be excused for thinking that this hearing had never taken place.

7. All of this material has to be irrelevant. Evidence that is not relevant in the proceeding is not admissible.[18] For the mother to raise, as she does at paragraph [20], that the father did not allow the child to attend a friend’s birthday party on 2^nd November 2008 serves no evidentiary purpose whatsoever, unless it is to show that the Mother harbours such deep and longstanding antipathy towards the Father that she would seriously raise such a trivial event to use against him four and a half years later.

   [18] Evidence Act 1995 (Cth) s. 56(2)

8. If it is the Mother’s intention to support her claim that the child’s interests need to be independently represented by a lawyer because of the intractable conflict between the parties, she has certainly succeeded from her side, at least.

9. This appears to be a case where there is an apparently intractable conflict between the parties – “a high level of long standing conflict between the parents” (Re K[19] at 555, 80,774). It is, therefore, in this child’s best interests that her interests should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act.

   [19] (1994) 17 Fam LR 537; FLC 92-461

10. Counsel for the Mother appeared to be critical of the fact that the Family Consultant spent only about 25 minutes speaking to the child but took considerably longer with each parent. If that is meant to imply that the Family Consultant’s opinion is superficial or lacking in detail, then I do not draw that inference.

11. It would be more concerning if the Family Consultant had spent an hour or more with the child and only a short period of time with each of her parents. I believe it to be well-known amongst those who practise in jurisdictions concerning the welfare of children that there is a risk that children can suffer what is called “systems abuse” by being repeatedly questioned and interviewed at length by professionals, albeit well-intentioned. This little girl is only nine years old (nine years and five months, to be precise) and her relatively young age needs to be taken into account. I should add that the primary purpose of the Child Dispute was to deal with the discrete issue of whether the child should go on the proposed trip to America.

12. In my view, there is no evidence before the Court to indicate that the Family Consultant’s recommendation about the weight to be given to this child’s views is not well-founded. Paragraph 60CC(3)(3)(a) of the Family Law Act provides that an additional consideration for the Court in determining what is in a child’s best interests is:

    (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give the child’s views;

13. I note the child’s age and the recommendation of the Family Consultant that, in the circumstances, the child’s expressed views should not carry significant sway and I accept that recommendation.

14. Counsel for the Mother made the submission that the Court should bear in mind that the current Orders resulted from a hearing which took place when the child was aged six and a half, but she is now nine and a half years old. Three years is a long time in the life a child, it was submitted.

15. With respect, I found this submission somewhat curious. The Court made final parenting orders after a defended hearing. Final parenting orders do not expire after three years, unless expressed to do so. They are intended to last until the child attains the age of 18, marries or enters into a de facto relationship (see Family Law Act, s.65H).

16. It is well-established that a Court should not lightly entertain an application to vary or reverse an earlier parenting order. It was held by Evatt CJ (Pawley and Fogarty JJ agreeing) in the Full Court of the Family Court in the well-known decision of Rice v Asplund[20]:

    The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that…there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous which would have been material.[21]

    [20] supra

    [21] (1979) FLC 90-725 at 78,905

17. The submission that almost three years have passed since the evidence was heard and the child is therefore three years older, seems to me, with respect, to fly in the face of the principle in Rice v Asplund, which has been well-established since 1979. It is not, in my view, open to a Court of first instance hearing an interim application to overturn this well-established principle.

18. The Orders relating to the proposed overseas holiday which the father seeks to enforce were specifically considered by this Court at a final hearing, where both parties were represented by counsel. The Court’s specific consideration of the issues relating to this particular trip can be found at paragraphs [58]-[60] of his Honour’s judgment.

19. The fact that the child would be three years older at the time did not escape his Honour:

    By that time (the child) will have:-

    - experienced Europe for at least 4-5 weeks in 2012 with the Mother; and

    - will be 91/2 years old.[22]

    [22] [2011] FMCAfam 809 at [59]

20. There was no appeal against the decision.

21. The Mother has not established any reason why the Orders of the Court made after a final hearing should not be followed. I will order accordingly.

22. The matter will be adjourned to 9^th August 2013, coincidently two years to the day since the final orders were handed down, for mention before Judge Sexton at 9:30am. It will be for her Honour to decide the future progress of the matter.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  24 June 2013