Marte and Moulin
[2007] FamCA 1501
•12 December 2007
FAMILY COURT OF AUSTRALIA
| MARTE & MOULIN | [2007] FamCA 1501 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Parental responsibility |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Marte |
| RESPONDENT: | Mr Moulin |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
| FILE NUMBER: | SYF | 3215 | of | 2004 |
| DATE DELIVERED: | 12 December 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 13 December 2006, 27 April, 20 August, 10, 11, 12 & 13 September 2007 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr El-Hanania Slattery Thompson Solicitors |
| THE RESPONDENT FATHER: | In Person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Wearne Legal Aid Commission NSW |
Orders
All previous parenting orders are to be discharged.
The parents are to have equal shared parental responsibility for the child … born … March 2003 save that the child is to attend the school at which she has been enrolled by her mother to commence her primary schooling in 2008.
The child is to live with her mother.
Subject to order 5 hereof, the child is to spend time with her father as follows:
A. until the commencement of Term 1 in 2008:
(a)every second weekend from 3pm Friday until 3pm Sunday;
(b)from the conclusion of day care on the Thursday following the return on Sunday afternoon [if she attends day care on that day] or from 3pm, whichever applies, until the commencement of day care the following day [if she attends day care on that day] or at 10am, whichever applies;
(c)at other times agreed.
B. from the commencement of Term 1 in 2008 until the commencement of Term 4 in 2008
(i) during school terms:
(a)every second weekend from after school on Fridays until before school on Mondays, commencing on the first Friday of Term 1, Term 2 and Term 3;
(b)every second week from after school Thursday [following return on Monday] to before school Friday;
(c)at other times agreed.
(ii) during school holidays:
(d)during the first half of the holidays at the end of Term 1, Term 2 and Term 3.
C. from the commencement of Term 4 in 2008 and thereafter
(i) during school terms:
(a)every second weekend from after school Thursdays until before school Mondays, to commence on the first Thursday of the Term if she has been with her father during the first half of the school holidays and on the second Thursday of the term if she has been with her father during the second half of the school holidays;
(b)every second week from after school Thursday [following return on Monday] to before school Friday;
(c)at other times agreed.
(ii) during school holidays:
(d)during the first half in even numbered years and the second half in odd numbered years;
For the purpose of any changeover which does not occur at the child’s school:
(a)the mother or her agent is to deliver the child to the … Contact Service at … ([Contact Centre]) where the father or his agent is to collect her at the commencement of the father’s time with her according to these orders or as agreed; and
(b)the father or his agent is to return the child to the Contact Centre where the mother or her agent is to collect her at the conclusion of the father’s time with her according to these orders or as agreed; and
(c)costs of the service are to be shared equally.
(d)if for some reason the Contact Centre is not available or the required service is not provided then at another Contact Service or at an agreed venue.
To implement order 5
(a)within 14 days each parent is to do all things necessary and complete all intake procedures as required by the Contact Centre so as to enable the family to avail themselves of facilitated changeover at that service and notify the Independent Children’s Lawyer in writing when compliance is completed;
(b)if the Contact Centre is not available or does not provide the required service then each parent is to do all things necessary and complete all intake procedures necessary to take up an alternative service or as might be required at an agreed venue.
Neither parent is to arrange any extracurricular activities for the child to occur in the time the child is to spend with the other parent.
Each parent is to promptly advise the other of:
(i)any serious illness or injury suffered by the child while in the care of that parent;
(ii)any medical treatment, any medication prescribed for the child while in the care of that parent as well as the name of the treating doctor.
Until further order the father, born … April 1966 or … May 1966 and the mother born … March 1982 their servants and/or agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child … born … March 2003 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
Pursuant to section 67ZD of the Family Law Act 1975 the father is to surrender his passport to the Registrar of the Family Court of Australia, Sydney Registry pending further order.
If the father intends to travel overseas:
(a)he is to provide written notice to the mother of his intention to travel (including proposed dates of departure and return), a copy of his itinerary and return tickets, no less than 28 days prior to the proposed date of departure;
(b)the mother is to provide written acknowledgement to the father within 7 days;
(c)the father is to provide a written request to the Registrar for the release of his passport, together with a copy of his written notice to the mother and any acknowledgement received from the mother;
(d)the Registrar is to release the father’s passport to the father within 72 hours of his proposed date of departure;
(e)Order 4 is suspended from 72 hours prior to the date of departure until the father provides the mother with a letter from the Court confirming he has returned his passport to the Court.
(f)Order 4 is to resume after compliance with Order 11(e) above.
Until further or other order both parents are hereby restrained from applying for any passport or international travel document in the name of the child … born … March 2003, either solely or jointly with either of them.
The Independent Children’s Lawyer is at liberty to serve a sealed copy of these orders on the Secretary of the Australian Department of Foreign Affairs and Trade (“the Department”) with a letter requesting the Secretary to take such steps as may be appropriate within the limits of the practice of the Department to ensure compliance with order 12 herein AND that in the event that any attempt is made by, or on behalf of, either party to obtain a passport or other travel document for the child or for her/himself and the child, that the Secretary immediately notify the Registrar of the Sydney Registry Family Court of Australia and the other party, of such attempt.
The Independent Children’s Lawyer has leave to serve a sealed copy of these orders on the Embassy of Lebanon in Canberra and on each Consulate of Lebanon in Australia with a letter requesting the Ambassador and his staff at each Consulate and his or her staff to co-operate and not issue any passport or other travel document so as to enable the removal of the child from the Commonwealth of Australia AND that in the event that any attempt is made by, or on behalf of either party to obtain a passport or other travel document for the child or for her/himself and the child, that the Embassy and/or Consulate immediately notify the Registrar of the Sydney Registry of the Family Court of Australia and the other party, of such attempt.
Within 21 days of final property orders being made, each party is to pay to the Legal Aid Commission of NSW the costs of the Independent Children’s Lawyer in the amount of $4,224.
IT IS NOTED that publication of this judgment under the pseudonym Marte & Moulin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 3215 of 2004
| MS MARTE |
Applicant
And
| MR MOULIN |
Respondent
REASONS FOR JUDGMENT
Proceedings
To be determined are the future arrangements for the parties 4 ½ year old daughter, the child (dob. …/3/03), who has been separately represented in the proceedings and at the final hearing.
Evidence
As the later brief reference to their background will show, the separate lives of both parents are lived in apparent satisfaction in many respects. They have partners and close family around them which suggests they have personable qualities and the industry in which they work suggests the likelihood of pleasant personalities. But the long and troubling history that has followed the end of their two years together as husband and wife and the acrimonious manner in which they have conducted themselves as parents demonstrates they have been unable to bring those characteristics to this area of their lives, which is unfortunate because it has regrettable consequences for their young daughter. In giving their evidence they offer their version of a range of past events, they propound their perspective of their daughter’s feelings and attitudes, and they put their view, directly or indirectly, of the others many shortcomings. Neither impresses as having the necessary degree of objectivity to be seen as reliable reporters and neither has been able to dispel the impression that more importance is attached to prevailing over the other and having their criticisms vindicated in this process than focussing on their daughter’s best interests. Nor can either claim the high ground after the examination of past events.
The mother called no witnesses, including her partner or her parents or other family members. The father called evidence from his wife, Mrs Moulin, and his only other witness was Ms N who was not required for cross-examination but whose evidence is peripheral to the core issues.
There is also evidence from a Family Consultant who prepared a written report which she elaborated on in cross-examination. The mother made a correction to what was reported of her interview in paragraph 11 which she does not recall saying because it is not her belief. That noted, supports for the assessments the reporter made are sufficiently identified and her opinions are sufficiently explained. However, having reviewed the whole of the evidence I have not adopted entirely the suite of recommendations at the end of her report but that is not to say her evidence did not provide valuable assistance in evaluating factors relevant to this child’s best interests and in deciding an outcome in the seemingly insoluble circumstances she finds herself.
Current circumstances
The mother (25) was born in Sydney and the father (41) was born in Lebanon and migrated to Australia with his family as a young child. They met in 2001 and commenced a relationship. They married in March 2002 but separated in some time in 2004 after their daughter’s first birthday. They became involved in litigation about her arrangements within a short time and that has been agitated with little respite over the past 3 ½ years.
The mother works in personal services in her cousin’s business in Sydney’s eastern suburbs. She works according to demand which varies but hopes to start full time work next year. She says her hours will be school hours and she will have her mother’s help with the child’s arrangements if required. She has been in a relationship with Mr S for the past 2 ½ years or so though they do not live together and she says she has no plans to live with him or marry him at this stage. He was not involved in the Family Report interviews and nor did she call any evidence from him as a witness in her case. As she relates his circumstances, he is 26 years of age, he is employed, he has not been married and he has no children. She lives with her brother in rented premises. Her parents have separated and when the family home is sold she intends to live with her two brothers and her mother in the same area she now lives in a south-western suburb of Sydney. She receives child support paid by the father, assessed administratively.
The father is a hairdresser and carries on business in the eastern suburbs. He maintains he has flexibility with his hours in the business and therefore he can accommodate his daughter’s arrangements. In April 2006 he married his present wife, Mrs Moulin (20), in Lebanon. They have one child, J, who was born in February this year and they are expecting the birth of their second child next April. He lives with his wife and son with his mother and sister. He says he and his wife plan to move out in the near future to somewhere nearby but the plan had not reached any concrete stage at the hearing.
According to the operative court orders the child lives with her mother and spends time with her father each week from Sunday morning until Monday afternoon and each Friday for three hours concluding 6pm. She has been attending pre-school in the south-west for the last few months. The mother’s cousin and mother assist as required with arrangements for her attendance there.
History – post-separation
What follows is not a complete account of their engagement with court proceedings or of the many orders and directions that followed, but it outlines the more central developments.
On 1 June 2004 the mother commenced proceedings for parenting and other orders. She succeeded in obtaining ex parte orders on 18 June restraining each party from removing the child from the Commonwealth of Australia and a recovery order. On 18 July interim orders were made for the father to have contact each week from Sunday morning to Monday afternoon as well as incidental orders. Those orders were varied by further interim orders made 20 July to include contact for four hours on the child’s birthday and to establish a ‘contact book’ to pass with the child at changeover. In preparation for the final hearing a Family Report was prepared and the matter concluded before Boland J in late November 2004. A review of the reasons for judgment delivered 17 December 2004 reveals that issues at the centre of those proceedings are the same issues still being agitated in this round of proceedings.
The final orders her Honour made on 17 December 2004 provided amongst other things for the child to live with her mother and have contact at times agreed but otherwise [until she turns 3½ years of age] with her father each Sunday, one other day to be agreed, and for three hours on Friday afternoon provided the father is able to personally care for her; thereafter each week from Sunday morning to Monday afternoon and for three hours on Friday afternoons provided the father is able to personally care for her; and provision was made for contact on various special occasions. The orders also provided that if the parents are unable to agree about contact with her father once the child commences school, either may file a further application for variation of the orders. A number of orders were made about aspects of parental responsibility: restraint on denigration of the other; keeping each other informed about current contact details and medical issues effecting the child; and each were restrained from taking the child to any psychologist, psychiatrist or like professional without the written consent of the other. The orders also required both to attend the Keeping Contact program with Unifam and additional orders related to equipping them with information relevant to that. A further order related to a lingering issue and that is the restraint on removing the child from the Commonwealth of Australia which seems to have been put in place to address concerns the mother was expressing that the father would take the child to Lebanon and not return her, based on threats he allegedly made to that effect before and after separation. The order:
‘20. That each of the parties be restrained from removing the child […] (female) born […] March 2003 from the Commonwealth of Australia AND the Court requested that the name of the child be placed on the Passenger Automatic Selection System at points of international departure from Australia until further order AND the Court requested the assistance of the Australian Federal Police in the implementation of that order.’
Finally, orders were made about the changeover of the child’s care from one to the other which, as repeat later events demonstrate, the parents have turned into fertile ground for conflict in which the child has been directly and indirectly embroiled. They were these:
‘8. For the purpose of implementing the contact provided in these orders, unless otherwise agreed between the parties the father shall personally collect the child from the mother at her residence at the commencement of contact and the father shall personally return the child to the mother at her residence at the conclusion of contact.
9.For the purposes of order 8 the father shall not bring any person with him at the time he collects the child from the mother, and the mother shall use her best endeavours to ensure that no member of her family is in the vicinity of the contact change-over point at the commencement and conclusion of contact.’
The father completed the Unifam program, though apparently not until 2006 [exhibit 6], but the mother did not. Asked to explain her non-compliance, she said she did not have any information from her solicitor at the time about how to get there and she did not know what she had to do. Nor, as cross-examination made clear, did she take any steps to obtain information from any source to enrol in the program.
In October 2005 the mother had a conversation with a relative… which she alleges re-activated her concerns about the prospect of the father removing the child from Australia to Lebanon. But she did nothing until early January 2006 when she sent a text message to the father advising him that there would be no further contact and he would have to take her back to court for it to resume, without giving any explanation.
As she maintains her concerns about this are real, the delay in taking any step to put an end to contact, thereby deny him the opportunity of doing the thing she fears, calls for explanation. When asked for it, she said she wanted to take ‘legal steps’ but she could not afford to do so and she made an application for legal aid. She alleges she had a conversation about it in November with the father who told her he was going to Lebanon but the child was not accompanying him. She was not reassured by this, taking the view he was not likely to admit to such a plan. Then in December she filed an application for property settlement accompanied by an affidavit in which she did mention parenting matters [the child’s distress at changeover and not wanting to go with her father, using swear words after visits to him, and late returns] but she made no mention of any concern about the father taking her out of the country when the opportunity presented. Certainly she gave no indication she would be putting an end to the contact between the child and her father in early January based on a conversation she had with someone the previous October. I find her explanation for doing so implausible.
Unsurprisingly, this was followed by the father filing a contravention application alleging breaches of the December 2004 orders to which the mother responded on 3 March with an application for the contact orders to be vacated and replaced by supervised visits on Saturdays for 5 hours at a Contact Centre. It was only at this stage she offered the explanation given here for having brought contact to an end and while she proposed supervision at a Centre, she did not identify any particular venue and nor did she inform herself about the availability of such a service or the means by which her proposal might be put in place to ensure the child continued to see her father.
The father filed another contravention application on 24 March alleging further breaches before the matter came before a Judicial Registrar on 14 June. On that day certain financial orders were made and the contact arrangement was varied for 14 days to several hours each Sunday, Tuesday and Friday and thereafter to revert to the orders of 17 December 2004 until further order. The father was also obliged to deposit any passports in his name with the Registry pending further order. Later in June the Judicial Registrar dismissed his contravention application and made an order for the appointment of a child representative and on 8 August made orders proposed by the independent children’s lawyer to this effect: the orders of 17 December 2004 were varied so as to enable the child to spend time with her father for the first 14 days each Sunday for four hours supervised by Dial-An-Angel and thereafter supervised by Dial-An-Angel each Sunday for four hours, and on two specified dates for four hours; thereafter, subject to the father complying with an order to surrender his passport to the Registry, the time with her father was to be in accordance with order 3 of the orders of 17 December until she reaches the age of four years and thereafter to spend time with her father in accordance with order 4.
The upshot of all this was no contact between the child and her father between 2 January and 20 August 2006. Exhibit 1 is a report from those who supervised the visits between 20 August and 10 September 2006. That evidence reflects an affectionate paternal family environment surrounding the child, a close and happy relationship between the child and her father, she was comfortable in his care, he was attentive and loving, and she seemed genuinely not to want to leave at the end of each visit and typically attempted to extend the visits.
On 15 September 2006 the father filed an application seeking an order that would enable him to take the child to a family wedding on 30 September. The mother sought its dismissal, advising that she proposed travelling that weekend to the Central Coast to attend birthday celebrations of her boyfriend and cousin. His application was dismissed on 26 September. But, as it transpired, the mother and her boyfriend and the child did not go to the coast but remained in Sydney where they booked into a hotel for the weekend [exhibit 5]. She sets out in her affidavit her account of those events and she elaborated on it at the hearing. But if it was meant to convey the impression she had valid reasons for denying the child the opportunity to go to the wedding and take her part as flower girl, it was unconvincing.
Days later, on 29 September 2006 the father filed an application seeking the release of his passport to travel outside Australia with his wife for purposes related to her visa. This led to consent orders being made on 4 October releasing his passport but also suspending the contact orders during his absence overseas.
In mid-January 2007 there were events that can only have been extremely distressing for a young child. It highlights the situation that had developed around the orders for changeover. The father insisted on compliance with the orders on return occasions; namely, that the child be returned to her mother and no one else. As she contends, however, he never insisted on her being there when he collected the child and readily took her from others and nor did he comply with the requirement not to be accompanied by others. In any event, exhibit 7 is the police record of their involvement on 14 January and following. In short, the father returned the child to her mother’s home but as she was not available he declined to hand the child over to her brother. The father left and took the child to the park to settle her down and await the mother’s return. He returned after receiving a text message to the effect that she was home but when he asked to see her, the brother said she was sleeping. The father again declined to leave the child and took her to his vehicle. He alleges the brother and two other males came to his car and parked his car in so he could not leave. Over all the time this was going on he made several calls to the police and they arrived in due course. It was then revealed that the mother was in hospital, not something the brother wanted to disclose to the father, and the upshot was that the father took the child home with him. Though the child was aware her mother was in hospital the father did not take her to see her mother, for which he offered an unconvincing explanation, and he returned the child a day or so later.
In May he brought further proceedings seeking the release of his passport so as to apply for a passport for his son, J, and again this was concluded by consent orders and suspension of the contact orders until he again lodged his passport with the court.
In late July the mother did not permit contact to occur on several occasions after the child had been taken to see a general medical practitioner. In the meantime, the father had again contacted the police and alerted them to the fact his daughter had not been made available and he could not locate her or her mother, though police records indicate he was not concerned about his daughter’s immediate welfare. Another contravention application followed in mid August, but as the final hearing was so proximate the issues it raised were to be taken up in the evidence there.
Orders now sought
In her application filed March 2006 the mother sought orders that would see the child spend limited time supervised with her father. When interviewed for the Family Report in March of this year her position had changed; she was no longer suggesting supervision but she was not proposing overnight visits - she did not impress the reporter as being clear about what she was proposing but there was a suggestion of every second Sunday during the day and every Wednesday and Friday afternoon. At the outset of the final hearing days the mother’s position changed again and her ultimate proposal [exhibit 2, as amended] is for the child to spend time with her father every Wednesday from 5pm until Thursday 8am and every second weekend from Friday after school or 4pm until [later altered] Monday before school. As for school holidays her proposal involved the child spending three consecutive days with her father followed by four consecutive days with her. Otherwise she proposes the father maintain the child’s extra-curricula activities such as swimming, dancing or birthday parties and he pay the expenses related to those activities. Finally she abandoned an earlier proposal about changeover at her residence and proposes changeover occur at a Contact Centre.
The father drafted his ultimate position [exhibit 3] in these terms:
“1. To have equal time shared arrangement.
2.To have [the child] from 6.30pm Friday night until 6.30pm Tuesday night in one week.
3.In the next week, to have contact from 6.30pm Friday until 6.30pm Monday night.
4.When [the child] starts school, next year in 2008, to have [the child]:
(a)Live with the father Friday afternoon at the conclusion of school until Monday morning, the commencement of school, in one week.
(b)In the next week, from Monday afternoon at the conclusion of school until the commencement of school, Friday morning.
(c)Half of school holidays in one go, as family report suggests.
(d)To exchange at a contact centre until school commences or any other time that we can’t pick up from school.
(e)To have [the child] Father’s Day, Christmas Eve, Christmas Day, New Years Eve and Easter weekend at the standard calendar (because [the mother] celebrates by the Palestinian Orthodox calendar).
(f)When [the mother] cannot be present or available to look after [the child], or when she attends to vacations, I kindly request for an order to be made to leave [the child] in my care.
(g)Authority for police to enforce court orders if [the mother] breaches them or refuses to hand over [the child].
(h)Make up lost contact time since January 2006 to date.
(i)[The mother] pay [the father]’s legal costs in the future if she initiates court proceedings and if court makes no findings of allegations made by [the mother].
(j)If [the mother] is not present at exchange of the child […], then for […], the father, to keep the child […] until the mother, […] is available to receive the child […] in person.
(k) For the court to release my passport.”
At the conclusion of the hearing the independent children’s lawyer proposed orders [exhibit 10] which I set out in full having regard to their comprehensive nature:
‘1. That all previous parenting orders be discharged.
2.That the parties equally share parenting responsibility for the child […] born […] March 2003.
3. That [the child] shall live with her mother.
4.That until the commencement of Term 1 in 2008, [the child] shall spend time with her father as follows:
(a)on each alternate weekend from 4pm on Friday until 4pm on Sunday.
(b)in each week, from 3pm or the conclusion of day care on Wednesday until 10am or the commencement of day care on Thursday;
(c) at such other times as agreed between the parties.
5.That after the commencement of Term 1 in 2008, [the child] shall spend time with her father as follows:
(a) During school terms:
(i)On each alternate weekend from after school on Friday until before school on Monday, commencing on the first Friday of each school term.
(ii)In each week, from after school on Wednesday until before school on Thursday.
(b) During school holidays:
(i)For the first half of the school holidays at the end of Term 1 and Term 4 in even numbered years, and the second half in odd numbered years.
(ii)For the first half of the school holidays at the end of Term 2 and Term 3 in each year.
(c) At such other times as agreed between the parties.
6.That for the purposes of any changeover which does not occur at [the child]’s school:
(a)The mother or her agent is to deliver [the child] to the [Contact Centre] at […] from where the father or his agent is to collect [the child] at the commencement of the father’s time with [the child], and
(b)The father or his agent is to deliver [the child] to [the Contact Centre] from where the mother or her agent is to collect [the child] at the conclusion of the father’s time with [the child].
7.For the purposes of order 6, each party shall within 14 days do all acts and things necessary and complete all intake procedures as required by [the Contact Centre] so as to enable the family to avail themselves of facilitated changeover at that service, and shall notify the Independent Children’s Lawyer in writing once this order has been complied with.
8.The father shall ensure that [the child] attends any pre-arranged extracurricular activities which occur during his time with [the child].
9.The mother shall use her best endeavours to enure that she does not arrange any extracurricular activities for [the child] on Wednesdays.
10. Order 2 above shall be facilitated by the following orders:
(a)That the parties shall attend for mediation no less than four times per year at a mediation service nominated to them by the Independent Children’s Lawyer to discuss major long terms issues in relation to [the child], including but not limited to:
(i)[The child]’s health, including any major medical condition or chronic illness suffered by [the child].
(ii) [The child]’s education and extracurricular activities.
(iii) [The child]’s religious upbringing.
(iv)Any proposed changes in [the child]’s living arrangements.
(b) That each party shall promptly advise the other of:
(i)Any serious illness or injury suffered by [the child] while in that party’s care.
(ii)Any course of medical treatment or medication required by [the child] to be continued in the care of the other party.
(iii)The name of [the child]’s treating doctor when [the child] is in the care of that party.
(c)That each party shall forthwith authorise and direct [the child]’s treating doctor to communicate with the treating doctor she consults when in the care of the other party.
11.That the costs of facilitated changeover at [the Contact Centre] and mediation be shared equally between the parties.
12.That each party shall within 7 days do all acts and things necessary to enrol in the Unifam “Keeping Contact” program and shall notify the Independent Children’s Lawyer in writing once this order has been complied with.
13.That until further order, each of the parties, [the father], born […] April 1966 or […] May 1966 and [the mother], born […] March 1982, their servants and/or agents be and hereby are restrained from removing or attempting to remove or causing or permitting the removal of the child […] born […] March 2003 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
14.That pursuant to section 67ZD of the Family Law Act 1975 the father shall surrender his passport to the Registrar of the Family Court of Australia, Sydney Registry.
15. In the event that the father intends to travel overseas:
(a)The father is to provide written notice to the mother of his intention to travel (including proposed dates of departure and return), a copy of his itinerary and return tickets, no less than 28 days prior to the proposed date of departure.
(b)The mother is to provide written acknowledgement to the father within 7 days.
(c)The father is to provide a written request to the Registrar for the release of his passport, together with a copy of his written notice to the mother and any acknowledgement received from the mother.
(d)The Registrar is to release the father’s passport to the father no more than 72 hours prior to the proposed date of departure.
(e)Orders 4 and 5 above shall be suspended from 72 hours prior to the date of departure until the father provides the mother with a letter from the Court confirming that he has returned his passport to the Court.
(f)[The child]’s time with her father shall resume in accordance with Orders 4 and 5 no less than 48 hours after compliance with Order 15(e) above.
16.That both parties be and hereby are restrained from applying for any passport or other travel document in the name of the child […] born […] March 2003.
17.That both parties be and hereby are restrained from applying for any passport or other travel document in the name of her/himself and the child […] born […] March 2003.
18.That the Independent Children’s Lawyer have leave to serve a sealed copy of these orders on the Secretary of the Australian Department of Foreign Affairs and Trade (“the Department”) with a letter requesting the Secretary to take such steps as may be appropriate within the limits of the practice of the Department to ensure compliance with orders 16 and 17 herein AND that in the event that any attempt is made by, or on behalf of, either party to obtain a passport or other travel document for the child or for her/himself and the child, that the Secretary immediately notify the Registrar of the Sydney Registry Family Court of Australia and the other party, of such attempt.
19.That the Independent Children’s Lawyer have leave to serve a sealed copy of these orders on the Embassy of Lebanon in Canberra and on each Consulate of Lebanon in Australia with a letter requesting the Ambassador and his staff at each Consulate and his or her staff to co-operate and not issue any passport or other travel document so as to enable the removal of the child from the Commonwealth of Australia AND that in the event that any attempt is made by, or on behalf of either party to obtain a passport or other travel document for the child or for her/himself and the child, that the Embassy and/or Consulate immediately notify the Registrar of the Sydney Registry of the Family Court of Australia and the other party, of such attempt.
20.That within 21 days of final property orders being made, each party shall pay to the Legal Aid Commission of NSW the costs of the Independent Children’s Lawyer in the amount of $4,224.
21.For the purposes of Order 20, the mother’s solicitor shall forward a sealed copy of the final property orders to the Independent Children’s Lawyer within 7 days of such orders being made.
22.That pursuant to s.65DA(2) and s.62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.’
Approach
The decisions required are governed by the statutory framework to be found in Part VII of the Act. The best interests of the child are the paramount consideration [s 60CA] and that applies to the whole of Part VII. There are express objects and underlying principles which inform the necessary evaluations and themselves rest on the concept of best interests. The objects are about children’s best interests being met: by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent consistent with their best interests; by protecting children from exposure to physical or psychological harm; by ensuring they receive adequate and proper parenting to help them achieve their potential; and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s60B(1)]. The principles underlying the objects, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents; a right to spend time on a regular basis and communicate regularly with both parents and significant others; a right to enjoy their culture; and that parents jointly share parental duties and responsibilities and should agree about future parenting [s60B(2)].
The legislation imposes a presumption that it is in the child’s best interests for parents to have equal shared parental responsibility when making a parenting order [s 61DA(1)]. ‘Parental responsibility’ is defined to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to children [s 61B] and until a child reaches the age of 18 years, each parent has parental responsibility [s 61C]. Absent a court order about it, that responsibility can be exercised by parents jointly or severally but where a court order has been made giving parents equal shared parental responsibility then decisions have to be made jointly about ‘major long term issues’ [s 65DAC] which is defined in s 4(1) as relating to issues about the child’s care, welfare and development of a long term nature and include education, religious and cultural upbringing, health, name, and changes to the child’s living arrangements that make it significantly more difficult for a child to the spend time with a parent.
This presumption about the child’s best interests does not apply where there are reasonable grounds to believe a parent has engaged in child abuse or family violence [s 61DA(2) – and s 60K obliges prompt action in relation to those allegations] and may be rebutted if the evidence establishes equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
Obviously parenting orders may be made about a range of matters but more usually a central question is the time a child is to spend with each parent and the application of the presumption produces a cascade effect on the consideration to be given to that. If the presumption applies:
(i)There is an obligation to consider whether it would be in the best interests of the child to spend equal time with each parent and whether that would be reasonably practicable and if it is to consider making that order [s 65DAA(1)].
(ii)If an order for equal time does not result, there is an obligation to consider if the child spending substantial and significant time with either parents is in the child’s best interests, and whether that would be reasonably practicable and if it is to consider making an order to that effect [s65DAA(2)]. The phrase ‘substantial and significant time’ is defined [s65DAA(3)] and requires the child to spend days that fall on weekends and holidays and those that do not, it also allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child, and it further allows the child to be involved in occasions and events of special significance to the parent.
(iii)At both of these ‘time’ steps, the factors which determine ‘best interests’ are ‘primary considerations’ and ‘additional considerations’ [s 60CC (2) and (3)]. The two primary considerations reflect in part the objects just mentioned [s60CC(2)] and there are a number of additional considerations which are wide ranging and in some instances their meaning elaborated in other sub-sections [eg s 60CC(3) and (4)].
(iii)The factors to be taken into account in determining what is ‘reasonably practicable’ are the distance between the parents’ residences, their capacity to implement an equal time arrangement, their capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, the impact such an arrangement would have on the child and such other matters the court considers relevant [s65DAA(5)].
(iv)Nothing obliges the adoption of equal or substantial and significant time; the obligation is to give real or genuine consideration to those options. Decisions about the child’s time, as with other parenting orders, remain discretionary and must align with the view taken of the particular child’s best interests [eg Giaroli [2007] FamCA 1260].
If the presumption does not apply -
(i)The child’s best interests are determined by the reference to the ‘primary’ and ‘additional’ considerations alone.
(ii)The time considerations imposed by s 65DAA do not apply but of course it will be necessary to discuss those outcomes if a party’s application fits either description. Discussion of what is ‘reasonably practicable’ may also be a relevant consideration in the particular case, but in these circumstances will be undertaken through whichever best interests factor comfortably accommodates it.
As Taylor & Barker [2007] FamCA 1246 noted, there is no express legislative direction about the order in which these various provisions are to be considered, but it is logical to begin with the primary and additional considerations though failure to do so ‘would not lead to appealable error unless such error rose form a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.’ I agree it is logical to start there because the concept of ‘best interests’ is an element of all steps in any direction.
Best interests
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
This consideration is capable of being read in more than one way but that need not be discussed here. Suffice to note the evidence establishes this child has close attachments to both parents who each have much to offer her, diminished only by their seeming inability to put aside their bitterness in her interests. As I find, she would greatly benefit from a meaningful relationship with both of them in that event.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The protection this child needs is from the unabated antipathy between her parents in which her extended family on both sides have also been embroiled. If she is not relieved from it, her opportunities for a happy and healthy childhood will be diminished, with implications for her not only in the short term but also in the longer term. While ever they lack constraint in their manner of dealing with each other, as has been the case to now, it will be necessary to draft orders to protect her from it as far as possible; more particularly, that means trying to eliminate or at least limit the occasions they encounter each other in her presence, therefore putting an end to the kind of upsetting episodes that have played out around the child in the past. One key to achieving that goal will be the adoption of the proposal about her making the transition between one parent and the other either at school or at a recognised Contact Centre.
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
At this very young age her views – as distinct form her attachments - are not a relevant consideration. But it is a convenient point at which to note some of the evidence about her development. The reporter described her as a ‘confident, energetic child’ who nonetheless refused to be drawn into any conversation about her parents or her life with them, though she did mention cousins on both sides. The child indicated to the reporter on a number of occasions that she was aware of the extreme conflict between her parents. That is hardly surprising given her presence at many unpleasant events. There is other evidence from some quarters that the child is exhibiting the occasional difficult behaviour such as ‘yelling and smashing things’ or being described as a ‘bully’ if she does not get her own way [see Family Report paragraphs 18 and 20]. The father also relates concern about some aspects of her behaviour, saying she has to ‘get her own way’ and she ‘gets angry and swears’ if she does not. If there is substance to these accounts of her behaviour, it is not being discussed as a central problem for her yet, but it is likely to become so if it is not dealt with in a consistent and constructive way. That underscores the need for consistency in her parenting and a uniform approach in responding to troublesome behaviour when it arises, although there is scant prospect of that whatever the outcome here.
(b) the nature of the relationship of the child with…parents…other persons
I am not satisfied either parent can acknowledge or really appreciate the nature of the child’s relationship with the other. This lends added importance to the more objective observations of the reporter who assesses the child as having a positive relationship with both parents. I accept that. In her assessment, the child’s primary attachment is to her mother though she as a ‘solid’ attachment to her father. I also accept that. Support for her attachment to her father is to be found also in the reports of the supervisors, in particular her delight at seeing him after an eight month absence.
With two close extended families around her, the child has many others involved in her day to day life to one extent or another. The husband’s wife is closely involved in her care when she is with her father and the reporter described the child as interacting and playing happily with her. I accept there is a satisfactory and close relationship in place there. The child was observed interacting and playing happily with her young half brother and I accept she is very fond of him. She was observed to virtually ignore her paternal grandmother whenever she was in close proximity during the day of report interviews and this may be indicative of a problematic relationship. However, it strikes me that some further exploration and perhaps identification of the source of the problem would be wise before coming to a conclusion about it. What can be said, as Ms Wearne noted in her submissions, is that the mother has not identified the paternal grandmother’s presence in the father’s home as a reason to differentiate in putting proposals about the child’s time with her father and I am not prepared therefore to draw an adverse conclusion about it. As for her maternal relatives, the reporter observed a positive relationship with her grandmother and she appeared to be comfortable in her uncle’s presence. Mr S was not present and so nothing is known of the child’s relationship with him.
(f)the capacity of each parent and any other person …to provide for the needs of the child, including emotional and intellectual needs
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
[including consideration of the extent to which each parent has fulfilled, or failed to fulfil, his or her parental responsibilities and, in particular, the extent to which each parent took or failed to take the opportunity to participate in major long terms decisions, spend time with the child, and communicate with the child and the extent to which each has facilitated the other’s participation and time and communication]
It is convenient to consider these various factors together because there is an array of assessments that might be seen as falling within one or the other. Unfortunately, in many instances those assessments reflect critically on both parents and yet there cannot be the slightest doubt about their love for their daughter and nor can it be doubted that they each see themselves as motivated to do what is best for her. None of that is in question. And the evidence did throw up a positive note: The mother spoke of the child liking her step-mother, commenting she can tell she is good with the child, and the husband’s wife told the reporter at one point she thought the mother was a good mother. That suggests the potential to build improved communications between the two households, but the opportunity has not ever been taken and seems to have been lost.
Otherwise, it has to be said that both parents impress as being more focussed on dredging up negatives about the other and caught up in their own and inter-family conflict. Their own communications lack the basic courtesies, as the accounts of text messages and other exchanges show, and they each have a critical view of the other’s family, more particularly the other’s mother; for example, the mother attributes many of the problems in the parents’ relationship to the husband’s mother and her influence on her son; he describes her mother as a ‘bully’ and ‘controlling’ and makes much of what he alleges is the undesirable environment generated by violence between her and her husband. This attitude and their failure to have developed the means of constructive communication is a serious drawback for their daughter’s well being. The reporter’s discussion with the child indicates she is completely aware of the conflict and criticism between her parents and coming from both sides of her family.
Both parents describe their daughter as being distressed before changeover to the other parent’s care and reluctant to go to the other parent. It is accepted that is happening; it comes not only from their evidence but also from others. It is also accepted, from the reporter’s observations, that the child does not exhibit any fear of either parent or inhibition towards them that would explain her reluctance to make that change. Both describe how they handle it: the mother by cuddling her and encouraging her by telling her she will have fun; the father by prolonging the departure, sometimes taking her to the park to settle her down, and encouraging her to go. In neither case has it been effective because the problem remains, which is unsurprising given the encouragement implicit in each strategy. Neither impresses as having the necessary insight to consider the behaviour may be attributable to the anxiety the child experiences from the surrounding conflict and critical attitudes. But there is no indication of motivation for change, probably because each sees the child’s behaviour as indicative of their own superior place in her affections rather than the product of their own doing. A united and decisive approach that did not prolong the parting might have been worth trying if her discomfort was not going to be alleviated by a wholesale change to their approach to parenting post separation.
It also has to be said that some of the evidence makes it difficult to conclude that of her own initiative the mother has a sufficient appreciation of the significance for the child of a relationship with her father or of his proper role in her upbringing; her proposals seem to come more from a begrudging acceptance that orders will be made about his time with their daughter. That comes from several directions. The steps she took in early January 2006 to have contact cease and the fact that the child did not see her father for the following 8 months is of real concern. The circumstances said to justify such an outcome were unconvincing and, even if her concerns are taken to be real, she took no steps to search for alternatives to satisfy herself the child would be safe but also continue to see her father regularly. Yet she did not see anything amiss for the child in this result: according to her, she did not miss her father, she did not mention his name, she was ‘not at all disturbed’ by his absence, she was very well behaved during that time, and she does not believe the child is attached to her father. She denies any recollection of telling the reporter ‘the less amount of time that [the child] spends with her father the better’ and says she does not believe that but ‘tries to be positive’. Taken to the supervisors’ report and to what was said there of the child’s enjoyment of resuming contact with her father, the mother was reluctant to accept she had enjoyed it – ‘she might have but she went to the dog and not to her father, that’s what they say’.
This attitude seems to be shared to at least some extent by her family, none of whom gave evidence directly, but is reflected in some of the comments made by those the reporter interviewed. It contrasts starkly with the reporter’s more reliable assessment of the child’s relationship with her father and her attachment to him and with the observations of the supervisors when visits resumed.
There is also the step she took in enrolling the child at school to commence her primary education next year, undertaken without consulting the father, and her explanation about him not appearing to be interested having regard to his response to a text message is not seen as sufficient. She did not tell him about what she had done even after the event and she was bound to accept he was hearing about it for the first time when she was being asked about it at the hearing. This indicates insufficient appreciation of his parental role and a casual attitude towards sidelining him when important decisions are to be made about their daughter’s upbringing.
To that there can be added the wedding weekend, thwarted by the proposal to go to the Central Coast which never eventuated, thereby denying the child the chance to be a flower girl which undoubtedly would have been a thrill for her. Again the explanation, related to the father knowing where they would be, was unconvincing and was insufficient to justify the outcome for the child.
But not all of it reflects only on the mother; some of the father’s actions have to be seen in a similar light. One significant shortcoming in his attitude to responsibilities is the consistently inflexible and incongruent approach he has taken to the changeover arrangements ordered by Boland J. Of course court orders are to be complied with, but parents are able to consent to their departure when the occasion arises; after all, the father found himself able to depart from them with the mother’s agreement if she was not present to hand the child to him when was collecting her. Rather than demonstrate some common sense and flexibility that would have caused no harm to anyone, he insisted on compliance and therefore failed to take account of the impact of his decision on the child and minimise the upset, nowhere more apparent than the events of 14 January. Nothing said here exculpates the others involved in the episode, including the attempted subterfuge about the mother’s situation, but in the final analysis the decisions he took on that occasion prolonged the situation and escalated the conflict and invited police intervention when it all could have been avoided sensibly with compromise in the interests of the child. Another example along a similar vein where he insisted on compliance with the changeover arrangements in the orders occurred in July. This sort of inflexibility is also evident in other attitudes he has; for example, he agreed he would take the child to extra-curricula activities arranged by the mother if they occur in the time the child is with him, but that would be conditional on him being given ‘make up’ time.
Finally, some mention should be made of the series of concerns raised by the mother about the father’s capacity to care for the child and the standard of care he provides, to be found in her affidavit or discussed with the reporter.
(a)One issue related to standards of cleanliness and care, the allegation being of poor attention to hygiene by not bathing or washing the child sufficiently, and returning her in wet clothing or clothing that is not hers. At times, it was said, she was returned four days later in the same underwear. However, I am not satisfied there is any substance in the complaint and an example of why that is so can be found in the allegation about the ‘white dress’. The mother’s complaint was to the effect that the child was returned wearing ‘an old ripped white dress that was held together with safety pins’ - giving the impression of some off-hand rag-tag care provided by her father. The response from the father’s household was that his wife, Mrs Moulin, had given the child a dress of hers to play ‘dress ups’ and the skirt was cut up at the front so she would not trip over it. Produced at the hearing, it was obvious it was for dress up purposes and it is impossible to see why it justified a complaint in an affidavit.
(b)On the other side of the scales, there is evidence about the child’s clothing that is of concern. It transpires that when the child goes to her father’s she is taken out of the clothes she came in from her mother’s and dressed in clothes he keeps for her, and to return to her mother’s they are taken off and she is put in clothes she came in. There was an attempt at the hearing to cast this in a different light, but it was not very convincing and the picture remains what was said of it in affidavits. That is of a child who is treated in a split way as she moves between households, which must convey to her a negative and potentially damaging message.
(c)Another concern the mother raised in her affidavit was the child coming home referring to ‘penis’ and ‘vagina’. The father responded to this in his affidavit. Asked about it, the mother said that having read the father’s response she had no further concerns. Of course had they discussed it, rather than save it up for affidavits, the point need never have been raised and it would have been resolved satisfactorily far earlier.
(d)Another concern related to the child coming home with a black eye and swollen lip and nose. The mother accepted there was an explanation given for the former [running into a door] but remained concerned at the absence of any explanation for the latter. Even so, there is nothing in this case to support any wrongdoing of that kind by the father or anyone in his household. Whatever the explanation, it would be the result of some mishap of one kind or another.
(e)There is also the allegation that the child was hit by her father with a stick, initially identified by the child’s reference to the stick as ‘Ali Abu’. It transpires, however, that she also uses that expression to refer to a coca cola bottle. Apparently the mother is not convinced, but I am satisfied this child has not been or is not being struck by her father with a stick. It is contra-indicated by her close relationship with him, her solid attachment to him, and the absence of any fear or inhibition in her approach to him.
(f)As for the allegation that he fails to administer medication as prescribed, he says he does. She does not accept that. The source of her belief, she says, is what the child tells her and she knows when she is telling lies. As she elaborated, when the topic was discussed she told the child not to tell a lie and then put the phone on speaker so that the child heard what was said. It is a telling episode for other reasons but does not establish the father is acting irresponsibly.
(g)Finally, there is a complaint that the father does not spend time with the child but leaves her in the care of others. The mother identified the source of this information as what the child says to her. No doubt the child sees lots of people when she is with her father – the supervisors reports attest to this during the period they were on the scene – but there is nothing to support a finding that he abandons his responsibilities to others.
Quite apart from certain concessions at the hearing making some of these things redundant, much of it, if not all, is incongruent with the orders the mother ultimately proposes about the child spending time with her father. Nor is there anything coming out of the observations of her relationship with her father to give them substance. Nor, it should be added given she is part of the father’s household, coming out of the child’s relationship with her step-mother or the husband’s wife’s presentation as a responsible adult.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from.. either parent…or any other child, or other person …
The proposals of both parents and of the independent children’s lawyer involve changes to the current circumstances. So far as that relates to the child’s time between her parents, that can be left until later. However, whatever else is said, it is important for there to be changes to the surrounding arrangements to implement the time the child spends with each so as to eradicate or at least reduce the prospect of her being embroiled in further uproars and police involvement over what should be the simple exercise of moving from the care of one parent to the other.
The current arrangements require the child to move between her parents a number of times each week when one occasion is only for a period of several hours. This gives her very little time to settle from the disturbance of some measure that usually accompanies that event and she needs to be protected from that sort of situation. If this cannot be managed by the parents in a manner consistent with their daughter’s wellbeing, then it must occur at a Contact Centre or [from next year] to and from school. The orders will implement that.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There are no practical difficulties or expense for the child spending time with and communicating with either parent. That is not to say the construction of appropriate orders is without practical implications. While they both live and work in Sydney, the parents live some distance apart and that has some impact on the orders and arrangements that can be put in place and work in the child’s interests.
(j)any family violence involving the child or a member of the child’s family
(k)any family violence order …
Whatever else is said, there is no violence between the parents. In so far as the father expresses concerns about violence in the mother’s environment by reason of her parents’ relationship, it is accepted there have been issues there but the maternal grandmother appears to be motivated to protect herself from unacceptable behaviour from her husband and the last indication of any trouble was some time ago. Not to be overlooked, despite his apparent concern about violent behaviour the mother’s now separated parents, the father has forged communications with and has some contact with her father who, after all, was an integral part of the situation about which he insists he has concerns.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This is a case in which the orders should finalise these proceedings; that is, it would be preferable to bring the long history of dispute to an end by final orders rather than, say, ordering a review at some stage of arrangements put in place now. In any event, my assessment of this child’s best interests does not call for orders to be crafted that way. Whether the parents institute another round of court proceedings after these orders are made of course will be for them, although it is hoped they will see other solutions to issues that might arise.
Parental responsibility
I come now to the question of parental responsibility and whether the presumption related to it should apply in this case. It would not be excluded on the ground of violence. However, there is long standing conflict and the parents have little or no demonstrated ability to communicate in a constructive way. This suggests equal shared parental responsibility may be contrary to the best interests of the child because there would be difficulty in the parents making decisions jointly about major long term issues. If that is unworkable, the imposition of that responsibility may create yet further ground for more litigation. This is a weighty consideration.
But there are arguments put against an order for sole parental responsibility. The reporter says that neither should be given sole responsibility and the submissions of the independent children’s lawyer urge an order for equal shared parental responsibility. In recognition of the communication issue, the children’s lawyer proposes putting in place, by orders, mechanisms for consultation and adopts the reporter’s specific recommendation for the parents to attend a Keeping Contact program in the expectation that will assist them to focus on their daughter’s best interests.
The strength of the contra-indicators might have tipped towards sole responsibility but, given these submissions, I have decided to accede to that point of view and make an order for equal shared parental responsibility [subject to one exception I shall mention shortly]. To imagine that the long running parental dispute will come to an end on the conclusion of these proceedings would probably be naïve, and there is a natural caution against adding to that prospect by obliging them to make decisions jointly about major issues related to their daughter’s upbringing. But when neither instils confidence they would exercise the responsibility involved without interpreting it as giving them the ascendency over the other in all aspects of their daughter’s life, the balance tends to tip in that direction because it would be more detrimental to her interests to have one parent effectively sidelined.
Two further things need be said about this. The first relates to the more immediate question of the school the child will attend next year. That has been resolved in favour of the mother maintaining her enrolment at the school she has arranged and that will be implemented as an exception to the parental responsibility order. That decision flows from the decision that the child will remain living predominantly with her mother and the view, therefore, that it is in her interests to attend the school most conveniently located to her mother’s residence.
The second relates to the proposal by the independent children’s lawyer to have equal shared parental responsibility facilitated by orders for the parents to attend mediation no less than four times per year at a service nominated to them by the independent children’s lawyer to discuss major long term issues. While the effort to provide a practical means of addressing their communication problem is recognised, I am unprepared to make that order. For one thing, the extent to which court orders can facilitate responsible parenting and co-operative attitudes is extremely limited and in this case that is best left to the parents to devise for themselves. If they want to agree between themselves to a proposal similar to that, they are always free to do so, but imposing it by order frankly conjures to my mind the prospect of a stream of contravention applications. Another consideration is that I regard it as undesirable to maintain the involvement of the independent children’s lawyer into the future or impose on that lawyer the role of identifying and nominating a mediation service for their attendance four times a year. If they cannot agree on a decision, they will have to arrange to discuss it in a mediated environment and it will take its course from there. I take the same view about the proposal for the parents to attend the Unifam course. They are free to do so if sufficiently motivated without the impetus of court orders.
Equal time
Not only does the finding of equal shared parental responsibility require consideration of whether equal time would be in the child’s best interests and reasonably practicable, the father’s application also requires that outcome be addressed. Shared parenting, not in the sense of exercising parental responsibility, but in the sense of children spending equal or approximately equal time between parents has been considered in a number of cases over the years. In my view the amendments to the Act from 1 July 2006 make no difference to those earlier discussions. In other cases I have analysed what the case law says about it [M & M [2005] FamCA 207 and Handley & Tranter [2007] FamCA 344]. I do not repeat what I said there here, but I set out the conclusion I reached after review of these cases [Jann v Yann (1976) FLC 90-027 at 75,120; Foster v Foster (1977) FLC 90-281 at 76,511; H v H-K (1990) 13 Fam LR 786; Padgen v Padgen (1991) FLC 92-231; Forck v Thomas (1993) 16 Fam LR 516; unreported decision of the Full Court (15 April 1997) in C v B; F v B [2000] FamCA 676; McGlynn v McGlynn, unreported 13 December 2001 per Le Poer Trench J; M v G, unreported 15 July 2003 per Kay J, and H v H (2003) FMCA Fam 41]:
‘These decisions do suggest that some careful deliberation is necessary in considering an arrangement whereby children spend their time moving between the households of their separated parents in equal or approximately equal proportions of their time. They also suggest that to be workable and of benefit to the child, desirable environmental factors include compatible parenting values; mutual respect as parents; good parental communication, trust and cooperation; an ability to compromise; geographic proximity between their residences; the age of the child has to be considered and the ability of the child to cope with the arrangement without stress or confusion needs to be taken into account; concrete issues related to upbringing such as manner of education and the like ideally would have been resolved; and there are no destabilising influences such as might be present when one or both parents re-partner. Without these factors, the arrangement may contain the seeds of harm from inconsistencies in influence, activities and life values, all of which have the potential to disorient and destabilise children. The purpose of any arrangement, after all, is to promote their welfare overall and not to satisfy the needs of their parents.’
It is difficult to find any of this able to be applied in a positive way to the facts of this case. Their communication difficulties are evident in the absence of discussion about things small and large – the cause of relatively minor injuries, her enrolment at school – there is suspicion and accusation about the administration of medicine, flexibility and the ability to compromise seem to be entirely absent, and issues about elementary things such as standards of hygiene, clothing, discipline, who should be caring for her have all been raised. Nor is there any common view about what extracurricular activities she should undertake and it is impossible to imagine there could be constructive resolution to missing or left behind clothing, books, uniforms and project work and so on – all necessary to provide their daughter with a sense of continuity and commonality whichever household she were to be living in from week to week.
The father’s view that an equal time outcome would allow him a significant involvement in the child’s life and that she would adjust to living with both parents equally, supported by their close relationship and her enjoyment of time with him and his family is acknowledged. But there is too much weight on the other side of the scales. The reporter does not support an equal time outcome and the independent children’s lawyer submits the facts contra-indicate it. I agree. However, having said that, I am conscious that the reporter’s recommendation, the independent children’s lawyer’s proposals, and the orders finally sought by the mother all put forward arrangements that do not fall much short of equal time from the commencement of 2008. That is to say, she would be spending virtually equal time with her parents during school holidays and quite substantial time with her father during school terms.
The next question is where she should spend her time predominantly. In my assessment, the answer to that has to be with her mother. Despite the shortcomings recognised in the mother’s attitudes and capacity to meet the child’s needs, that is the least detrimental outcome for the child. There is no doubting the child’s attachment to her father or the close nature of her relationship with him and with others around him, but her mother has been her primary carer to this point in her life, she has spent relatively limited periods away from her mother in her father’s care on any one occasion, and there is the very significant assessment that the child is primarily attached to her mother. To take such a young child from those circumstances, particularly given her attachments, would require the alternative to be recognisably superior plus engender confidence that any upset or sense of loss would be dealt with satisfactorily. That is not the case here.
Substantial and significant time
It falls then to consider whether it would be in her best interests and reasonably practicable to spend substantial and significant time, as defined in the Act, with her father. The proposal of the mother, the proposal of the independent children’s lawyer and the recommendation of the reporter all fit this description. I agree substantial and significant time with her father will be in the child’s best interests, though I cannot adopt the specific form of orders proposed for reasons I trust will be apparent from what follows.
Conclusion – best interests
Having recommended that the child live with her mother, the reporter recommended the time spent with her father move in stages: initially, that be according to the orders of 17 December 2004 so long as he continues to share accommodation with his family but with changeovers occurring at a Contact Centre if possible; once he is in independent accommodation the time become each alternate weekend from Saturday afternoon 4pm until Monday 5.30pm and each Wednesday from 3pm until 9am Thursday morning, again if possible the changeovers occurring at a Contact Centre; and once she commences school the time start on Friday afternoons and all changeovers occur at school. It is further recommended that school holidays be spent equally with each parent.
The proposal about differentiating the time depending on whether the father is living with his mother obviously stems from the reporter’s brief observation in interview, but it is not something taken up by the mother or by the independent children’s lawyer and the evidence does not throw up anything else to warrant that differentiation being reflected in orders.
The suggestion of staggering the time the child would spend with her father before arriving at the start of her school is sound, given that she has been spending only one night overnight with him under the interim arrangements. That said, it is recognised the time has now advanced to the point where there is a limited period before she starts school; nonetheless, the period remaining can be used to introduce another overnight stay with her father before moving to the post-school period. As to that, I have drafted orders that will see further staging for a period of some months before another increase is introduced later in the year. The ultimate arrangement to be implemented at that time provides similar time as a whole to that proposed by the reporter, the independent children’s lawyer and the mother in the orders she ultimately sought. But the time is introduced over a longer period and arranged in a different sequence during school terms.
As will be noted from the orders drafted, the regime I have devised provides for some increase in the present arrangements now until the start of school in 2008 and then for three terms there will be a further increase until it equates with the 5 nights a fortnight reflected in the proposals mentioned. This more gradual introduction I see as likely to contribute to the success of the ultimate arrangement, by giving the child that much more time to adjust to the increased time away from her mother to be spent with her father.
The re-arrangement of the pattern of time during school terms flows from examination of what would be involved for such a young child over each 14 day period. According to the proposals put, starting with the Friday afternoon she goes to her father she would be collected from school and spend 3 nights with her father, 2 night back with her mother, 1 night with her father, 6 nights with her mother, 1 night with her father, 1 night with her mother, and then return to the start of the cycle by spending the next 3 nights with her father. This strikes me as far too fragmented and, while the changeovers at the mother’s residence and therefore the tension surrounding those events will come to an end, it nonetheless involves too much coming and going with insufficient time for the child to settle before there is a change.
In saying that, I recognise the benefits for the child of the proposal as put as outlined by the independent children’s lawyer in submissions, including the fact that there would not be too long a period before the child sees her father between visits and the fact that the same ‘mid-week’ overnight stay each week would allow each parent to make arrangements for extracurricular activities knowing she will always be with that parent on that day each week. These are sound enough considerations, but they do not address the disadvantages of moving so frequently for such short periods between the homes of her parents. The ultimate arrangement to be introduced towards the end of next year for the longer term will implement a regime of 4 nights with father, 3 with mother, 1 with father and 6 with mother, which admittedly still involves some change for the child, but it does provide the advantages the independent children’s lawyer spoke of and there are fewer changeovers in the fortnight.
Perhaps two more observations about the proposed orders are necessary. It will be seen that no provision has been made for special occasions such as birthdays and Mothers Day or Fathers Day. It is always open to parents to agree about what should happen on these occasions and so it is in this family. But to make provision in these orders is too complicated in circumstances where the changeover has to be either at school or at a Contact Centre. Finally, the order about extra-curricula activities is designed to allow each parent to make whatever arrangements they see fit about the child’s activities but there is likely to be less disagreement and tension for the child if they are only permitted to do so on the days they each have her in their care.
Passport release
It remains to resolve the passport issue and address the order sought by the father for the release of his passport.
The mother identified the prospect of the father abducting the child to Lebanon as her ‘main concern’ in her discussions with the reporter, a fear she had harboured since before separation and dealt with by Boland J as indicated earlier. She sees him as having sufficient supports in the Lebanese community to make it relatively easy to achieve and he has kept her fears alive by being frequently late in returning the child at the end of visits. Added to that, the evidence surrounding his nomination of different dates of birth has done nothing to alleviate concerns.
While the reporter assesses the mother’s fears as ‘strong’, she is not able to say whether they are well founded. Certainly if her conduct in the lead up to stopping contact for 8 months in early January 2006 is any indicator, it would be reasonable to harbour some scepticism about whether the fears she expresses are genuine. What could be added to that scepticism on one side of the scales would be these considerations about the father’s personal circumstances: he has substantial ties here in Australia where he owns and conducts a business and the members of his immediate family all live in Australia, and that now includes his wife and their child. On the other side of the scales is the prospect that her fears are genuine and of course there is no way of knowing with certainty what someone might do in a bitter dispute about parenting arrangements. That is not to be translated as meaning the view is take that the father would spirit the child away out of Australia, but to be merely a recognition there can be no guarantees about such an issue, and he has not assisted his case much by the odd history of his birth dates and the like.
The balance is a fine one. The independent children’s lawyer proposes a continuation of the safeguards according to the existing orders as well as other orders set out earlier out. I tend to agree they would be appropriate because I see it offering more advantages than disadvantages from the perspective of the child’s best interests. Primarily, the absence of any safeguard about the father’s passport cannot be used by the mother as an excuse in the future to disrupt the time the child is to spend with her father and, secondly, there is at least the possibility, however slight, that the mother’s negative attitude might improve if she is relieved of anxiety about the prospect of abduction, assuming the anxiety is real, to the extent possible by such orders. Against that, there is the inconvenience to the father pursuant to the arrangements proposed by the independent children’s lawyer, but that is relatively limited and it achieves a proper balance overall.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
Associate
Date: 12 December 2007
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